[Federal Register Volume 62, Number 126 (Tuesday, July 1, 1997)]
[Rules and Regulations]
[Pages 35351-35385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16742]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 286
[DoD 5400.7-R]
RIN 0790-AG
DoD Freedom of Information Act Program Regulation
AGENCY: Department of Defense.
ACTION: Final rule.
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SUMMARY: This revision provides substantive and administrative changes
to conform to the requirements of the Electronic Freedom of Information
Act Amendments of 1996, 5 U.S.C. 552, as amended by Public Law 104-231.
It also provides guidance to the Department of Defense on
implementation of this amended law.
EFFECTIVE DATE: May 22, 1997.
FOR FURTHER INFORMATION CONTACT: Mr. C. Talbott, 703-697-1171.
SUPPLEMENTARY INFORMATION: On February 19, 1997 (62 FR 7398), the
Department of Defense published a proposed rule for comment. DoD
received a response from two commentors. Seven of the comments received
were accepted and incorporated into this final rule.
Executive Order 12866, ``Regulatory Planning and Review''
It has been determined that 32 CFR part 286 is not a significant
regulatory action. The rule does not:
(1) Have an annual effect to the economy of $100 million or more or
adversely affect in a material way the economy; a section of the
economy; productivity; competition; jobs; the environment; public
health or safety; or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been certified that this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities. This rule implements the Freedom of Information Act
(5 U.S.C. 552), a statute concerning the release of Federal Government
records, and does not economically impact Federal Government relations
with the private sector.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter
35)
It has been certified that this part does not impose any reporting
or recordkeeping requirements under the Paperwork Reduction Act of
1995.
List of Subjects in 32 CFR Part 286
Freedom of information.
Accordingly, 32 CFR part 286 is revised to read as follows:
PART 286--DOD FREEDOM OF INFORMATION ACT PROGRAM REGULATION
Sec.
Subpart A--General Provisions
286.1 Purpose and applicability.
286.2 Public information.
286.3 Definitions.
286.4 Policy.
Subpart B--FOIA Reading Rooms
286.7 Requirements.
286.8 Indexes.
Subpart C--Exemptions
286.11 General provisions
286.12 Exemptions.
Subpart D--For Official Use Only
286.15 General provisions.
286.16 Markings.
286.17 Dissemination and transmission.
286.18 Safeguarding FOUO information.
286.19 Termination, disposal and unauthorized disclosure.
Subpart E--Release and Processing Procedures
286.22 General provisions.
286.23 Initial determinations.
286.24 Appeals.
286.25 Judicial actions.
Subpart F--Fee Schedule
286.28 General provisions.
286.29 Collection of fees and fee rates.
286.30 Collection of fees and fee rates for technical data.
Subpart G--Reports
286.33 Reports control.
286.34 Annual report content.
Subpart H--Education and Training
286.37 Responsibility and purpose.
Appendix A to Part 286--Combatant Commands--Processing Procedures
for FOIA Appeals
Appendix B to Part 286--Addressing FOIA Requests
Appendix C to Part 286--Other Reason Categories
Appendix D to Part 286--Record of Freedom of Information (FOI)
Processing Cost
Appendix E to Part 286--Record of Freedom of Information (FOI)
Processing Cost for Technical Data
Appendix F to Part 286--Annual Report Freedom of Information Act
Appendix G to Part 286--DoD Freedom of Information Act Program
Components
Authority: 5 U.S.C. 552.
Subpart A--General Provisions
Sec. 286.1 Purpose and applicability.
(a) Purpose. This part provides policies and procedures for the DoD
implementation of the Freedom of Information Act (5 U.S.C. 552) and DoD
Directive 5400.7,\1\ and promotes uniformity in the DoD Freedom of
Information Act (FOIA) Program.
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\1\ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22121.
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(b) Applicability. This part applies to the Office of the Secretary
of Defense (OSD), the Military Departments, the
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Chairman of the Joint Chiefs of Staff, the Combatant Commands, the
Inspector General of the Department of Defense (IG DoD), the Defense
Agencies, and the DoD Field Activities (hereafter referred to
collectively as ``the DoD Components''). This part takes precedence
over all DoD Component publications that supplement and implement the
DoD FOIA Program. A list of DoD Components is at appendix G to this
part.
Sec. 286.2 Public information.
(a) The public has a right to information concerning the activities
of its Government. DoD policy is to conduct its activities in an open
manner and provide the public with a maximum amount of accurate and
timely information concerning its activities, consistent always with
the legitimate public and private interests of the American people. A
record requested by a member of the public who follows rules
established by proper authority in the Department of Defense shall not
be withheld in whole or in part unless the record is exempt from
mandatory partial or total disclosure under the FOIA. As a matter of
policy, DoD Components shall make discretionary disclosures of exempt
records or information whenever disclosure would not foreseeably harm
an interest protected by a FOIA exemption, but this policy does not
create any right enforceable in court. In order that the public may
have timely information concerning DoD activities, records requested
through public information channels by news media representatives that
would not be withheld if requested under the FOIA should be released
upon request. Prompt responses to requests for information from news
media representatives should be encouraged to eliminate the need for
these requesters to invoke the provisions of the FOIA and thereby
assist in providing timely information to the public. Similarly,
requests from other members of the public for information that would
not be withheld under the FOIA should continue to be honored through
appropriate means without requiring the requester to invoke the FOIA.
(b) Within the OSD, the Assistant Secretary of Defense for Command,
Control, Communications, and Intelligence, as Chief Information
Officer, in conjunction with the Assistant Secretary of Defense for
Public Affairs is responsible for ensuring preparation of reference
material or a guide for requesting records or information from the
Department of Defense, subject to the nine exemptions of the FOIA. This
part shall also include an index of all major information systems, and
a description of major information and record locator systems, as
defined by the Office of the Assistant Secretary of Defense for
Command, Control, Communications, and Intelligence. DoD FOIA Components
shall coordinate with the appropriate office(s) to insure that this is
also accomplished within their department or organization.
(c) DoD Components shall also prepare, in addition to normal FOIA
regulations, a handbook for the use of the public in obtaining
information from their organization. This handbook should be a short,
simple explanation to the public of what the FOIA is designed to do,
and how a member of the public can use it to access government records.
Each DoD Component should explain the types of records that can be
obtained through FOIA requests, why some records cannot, by law, be
made available, and how the DoD Component determines whether the record
can be released. The handbook should also explain how to make a FOIA
request, how long the requester can expect to wait for a reply, and
explain the right of appeal. The handbook should supplement other
information locator systems, such as the Government Information Locator
Service (GILS), and explain how a requester can obtain more information
about those systems. The handbook should be available on paper and
through electronic means, and identify how a requester can access DoD
Components' Freedom of Information Act Annual Reports. Similarly, the
DoD Components' Freedom of Information Act Annual Reports should refer
to the handbook and how to obtain it.
(d) Control system. A request for records that invokes the FOIA
shall enter a formal control system designed to ensure accountability
and compliance with the FOIA. Any request for DoD records that either
explicitly or implicitly cites the FOIA shall be processed under the
provisions of this part, unless otherwise required by Sec. 286.4(m).
Sec. 286.3 Definitions.
As used in this part, the following terms and meanings shall be
applicable.
Administrative appeal. A request by a member of the general public,
made under the FOIA, asking the appellate authority of a DoD Component
to reverse a decision to: withhold all or part of a requested record;
deny a fee category claim by a requester; deny a request for expedited
processing due to demonstrated compelling need under Sec. 286.4(d)(3);
deny a request for waiver or reduction of fees; deny a request to
review an initial fee estimate; and confirm that no records were
located during the initial search.
Agency record. (1) The products of data compilation, such as all
books, papers, maps, and photographs, machine readable materials,
inclusive of those in electronic form or format, or other documentary
materials, regardless of physical form or characteristics, made or
received by an agency of the United States Government under Federal law
in connection with the transaction of public business and in Department
of Defense possession and control at the time the FOIA request is made.
Care should be taken not to exclude records from being considered
agency records, unless they fall within one of the categories of
paragraph (2) of this definition.
(2) The following are not included within the definition of the
word ``record''.
(i) Objects or articles, such as structures, furniture, vehicles
and equipment, whatever their historical value, or value as evidence.
(ii) Anything that is not tangible or documentary record, such as
an individual's memory or oral communication.
(iii) Personal records of an individual not subject to agency
creation or retention requirements, created and maintained primarily
for the convenience of an agency employee, and not distributed to other
agency employees for their official use. Personal papers fall into
three categories: those created before entering Government service;
private materials brought into, created, or received in the office that
were not created or received in the course of transacting Government
business; and work-related personal papers that are not used in the
transaction of Government business (see ``Personal Papers of Executive
Branch Officials: A Management Guide,'' National Archives and Records
Administration, Office of Records Administration, Washington, DC, 1992
\2\).
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\2\ Available from the Records Administration Center, Agency
Services Division (NIA), Washington, DC 20408.
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(3) A record must exist and be in the possession and control of the
Department of Defense at the time of the request to be considered
subject to this part and the FOIA. There is no obligation to create,
compile, or obtain a record to satisfy a FOIA request. See
Sec. 286.4(g)(2) creating a record in the electronic environment.
(4) Hard copy of electronic records, that are subject to FOIA
requests under 5 U.S.C. 552(a)(3), and that are available to the public
through an established distribution system, or through the Federal
Register, the National Technical Information Service, or the Internet,
normally need not be processed under the provisions of the FOIA. If a
request is received for such information, DoD
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Components shall provide the requester with guidance, inclusive of any
written notice to the public, on how to obtain the information.
However, if the requester insists that the request be processed under
the FOIA, then the request shall be processed under the FOIA. If there
is any doubt as to whether the request must be processed, contact the
Directorate for Freedom of Information and Security Review.
Appellate authority. The Head of the DoD Component or the Component
head's designee having jurisdiction for this purpose over the record,
or any of the other adverse determinations outlined in the definitions
initial denital authority and administrative appeal in this section.
DoD Component. An element of the Department of Defense, as defined
in Sec. 286.2(b), authorized to receive and act independently on FOIA
requests. (See Appendix G to this part). A DoD Component has its own
initial denial authority (IDA), appellate authority, and legal counsel.
Electronic record. Records (including e-mail) that are created,
stored, and retrievable by electronic means.
Federal agency. As defined by 5 U.S.C. 552(f)(1), a Federal agency
is any executive department, military department, Government
corporation, Government controlled corporation, or other establishment
in the executive branch of the Government (including the Executive
Office of the President), or any independent regulatory agency
FOIA request. A written request for DoD records, made by any
person, including a member of the public (U.S. or foreign citizen), an
organization, or a business, but not including a Federal Agency or a
fugitive from the law, that either explicitly or implicitly invokes the
FOIA, DoD Directive 5400.7, this part, or DoD Component supplementing
regulations or instructions. Written requests may be received by postal
service or other commercial delivery means, by facsimile, or
electronically.
Initial Denial Authority (IDA). An official who has been granted
authority by the head of a DoD component to withhold records requested
under the FOIA for one or more of the nine categories of records exempt
from mandatory disclosure. IDA's may also deny a fee category claim by
a requester; deny a request for expedited processing due to
demonstrated compelling need under Sec. 286.4(d)(3), deny a request for
a waiver or reduction of fees; review a fee estimate; and confirm that
no records were located in response to a request.
Public interest. The interest in obtaining official information
that sheds light on an agency's performance of its statutory duties
because the information falls within the statutory purpose of the FOIA
to inform citizens about what their Government is doing. That statutory
purpose, however, is not fostered by disclosure of information about
private citizens accumulated in various governmental files that reveals
nothing about an agency's official's own conduct.
Sec. 286.4 Policy.
(a) Compliance with the FOIA. DoD personnel are expected to comply
with the FOIA, this part, and DoD FOIA policy in both letter and
spirit. This strict adherence is necessary to provide uniformity in the
implementation of the DoD FOIA Program and to create conditions that
will promote public trust.
(b) Openness with the public. The Department of Dense shall conduct
its activities in an open manner consistent with the need for security
and adherence to other requirements of law and regulation. Records not
exempt from disclosure under the Act shall, upon request, be made
readily accessible to the public in accordance with rules promulgated
by competent authority, whether or not the Act is invoked.
(c) Avoidance of procedural obstacles. DoD Components shall ensure
that procedural matters do not unnecessarily impede a requester from
obtaining DoD records promptly. Components shall provide assistance to
requesters to help them understand and comply with procedures
established by this part and any supplemental regulations published by
the DoD Components.
(d) Prompt action on requests. (1) Generally, when a member of the
public complies with procedures established in this part and DoD
Component regulations or instructions for obtaining DoD records, and
after the request is received by the official designated to respond,
DoD Components shall endeavor to provide a final response determination
within the statutory 10 working days (20 working days effective October
2, 1997). If a significant number of requests, or the complexity of the
requests prevent a final response determination within the statutory
time period, DoD Components shall advise the requester of this fact,
and explain how the request will be responded to within its multitrack
processing system (see paragraph (d)(2) of this section). A final
response determination is notification to the requester that the
records are released, or will be released on a certain date, or the
records are denied under the appropriate FOIA exemption, or the records
cannot be provided for one or more of the other reasons in Sec. 286.23.
Interim responses acknowledging receipt of the request, negotiations
with the requester concerning the scope of the request, the response
timeframe, and fee agreements are encouraged; however, such actions do
not constitute a final response determination pursuant to the FOIA.
(2) Multitrack processing. When a Component has a significant
number of pending requests that prevents a response determination being
made within 10 working days (20 working days effective October 2,
1997), the requests shall be processed in a multitrack processing
system, based on the date of receipt, the amount of work and time
involved in processing the requests, and whether the request qualifies
for expedited processing as described in paragraph (d)(3) of this
section. DoD Components may establish as many processing queues as they
wish; however, as a minimum, three processing tracks shall be
established, all based on a first-in, first-out concept, and rank
ordered by the date of receipt of the request. One track shall be a
processing queue for simple requests, one track for complex requests,
and one track shall be a processing queue for expedited processing as
described in paragraph (d)(3) of this section. Determinations as to
whether a request is simple or complex shall be made by each DoD
Component. DoD Components shall provide a requester whose request does
not qualify for the fastest queue (except for expedited processing as
described in paragraph (d)(3) of this section), an opportunity to limit
in writing by hard copy, facsimile, or electronically, the scope of the
request in order to qualify for the fastest queue. This multitrack
processing system does not obviate components' responsibility to
exercise due diligence in processing requests in the most expeditious
manner possible.
(3) Expedited processing. A separate queue shall be established for
requests meeting the test for expedited processing. Expedited
processing shall be granted to a requester after the requester requests
such and demonstrates a compelling need for the information. Notice of
the determination as to whether to grant expedited processing in
response to a requester's compelling need shall be provided to the
requester within 10 calendar days after receipt of the request in the
DoD Component's office that will determine whether to grant expedited
processing. Once the DoD Component has determined to grant expedited
processing, the request shall be processed as soon as practicable.
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Actions by DoD Components to initially deny or affirm the initial
denial on appeal of a request for expedited processing, and failure to
respond in a timely manner shall be subject to judicial review.
(i) Compelling need. The failure to obtain the records on an
expedited basis could reasonably be expected to pose an imminent threat
to the life or physical safety of an individual.
(ii) Compelling need also means that the information is urgently
needed by an individual primarily engaged in disseminating information
in order to inform the public concerning actual or alleged Federal
Government activity. An individual primarily engaged in disseminating
information means a person whose primary activity involves publishing
or otherwise disseminating information to the public. Representatives
of the news media (see Sec. 286.28(e)(7)(i)) would normally qualify as
individuals primarily engaged in disseminating information. Other
persons must demonstrate that their primary activity involves
publishing or otherwise disseminating information to the public.
``Urgently needed'' information has a particular value that will be
lost if not disseminated quickly. Ordinarily this means a breaking news
story of general public interest. However, information of historical
interest only, or information sought for litigation or commercial
activities would not qualify, nor would a news media publication or
broadcast deadline unrelated to the news breaking nature of the
information.
(iii) A demonstration of compelling need by a requester shall be
made by a statement certified by the requester to be true and correct
to the best of their knowledge. This statement must accompany the
request in order to be considered and responded to within the 10
calendar days required for decisions on expedited access.
(iv) Other reasons for expedited processing. Other reasons that
merit expedited processing by DoD Components are an imminent loss of
substantial due process rights and humanitarian need. A demonstration
of imminent loss of substantial due process rights shall be made by a
statement certified by the requester to be true and correct to the best
of his or her knowledge. Humanitarian need means that disclosing the
information will promote the welfare and interests of mankind. A
demonstration of humanitarian need shall be also made by a statement
certified by the requester to be true and correct to the best of his or
her knowledge. Both statements mentioned above must accompany the
request in order to be considered and responded to within the 10
calendar days required for decisions on expedited access. Once the
decision has been made to expedite the request for either of these
reasons, the request may be processed in the expedited processing queue
behind those requests qualifying for compelling need.
(v) These same procedures also apply to requests for expedited
processing of administrative appeals.
(e) Use of exemptions. It is DoD policy to make records publicly
available, unless the record qualifies for exemption under one or more
of the nine exemptions. It is DoD policy that DoD Components shall make
discretionary releases whenever possible; however, a discretionary
release is normally not appropriate for records clearly exempt under
exemptions 1, 3, 4, 6, 7(C) and 7(F) (see subpart C of this part).
Exemptions 2, 5, and 7(A)(B)(D) and (E) (see subpart C of this part)
are discretionary in nature, and DoD Components are encouraged to
exercise discretionary releases whenever possible. Exemptions 4, 6 and
7(C) cannot be claimed when the requester is the submitter of the
information.
(f) Public domain. Nonexempt records released under the authority
of this part are considered to be in the public domain. Such records
may also be made available in Components' reading rooms in paper form,
as well as electronically, to facilitate public access. Discretionary
releases to FOIA requesters constitute a waiver of the FOIA exemptions
that may otherwise apply. Disclosure to a properly constituted advisory
committee, to Congress, or to other Federal Agencies does not waive the
exemption. (See Sec. 286.22(d)). Exempt records disclosed without
authorization by the appropriate DoD official do not lose their exempt
status. Also, while authority may exist to disclose records to
individuals in their official capacity, the provisions of this part
apply if the same individual seeks the records in a private or personal
capacity.
(g) Creating a record. (1) A record must exist and be in the
possession and control of Department of Defense at the time of the
research to be considered subject to this part and the FOIA. There is
no obligation to create, compile, or obtain a record to satisfy a FOIA
request. A DoD Component, however, may compile a new record when so
doing would result in a more useful response to the requester, or be
less burdensome to the agency than providing existing records, and the
requester does not object. Cost of creating or compiling such a record
may not be charged to the requester unless the fee for creating the
record is equal to or less than the fee which would be charged for
providing the existing record. Fee assessments shall be in accordance
with subpart F of this part.
(2) About electronic data, the issue of whether records are
actually created or merely extracted from an existing database is not
always readily apparent. Consequently, when responding to FOIA requests
for electronic data where creation of a record, programming, or
particular format are questionable, Components should apply a standard
of ``reasonableness.'' In other words, if the capability exists to
respond to the request, and the effort would be a ``business as usual''
approach, then the request should be processed. However, the request
need not be processed where the capability to respond does not exist
without a significant expenditure of resources, thus not being a normal
``business as usual'' approach. As used in this sense, a significant
expenditure of resources in both time and manpower, that would cause a
significant interference with the operation of the Components'
automated information system would not be a business as usual approach.
(h) Description of requested record. (1) Identification of the
record desired is the responsibility of the requester. The requester
must provide a description of the desired record, that enables the
Government to locate the record with a reasonable amount of effort. In
order to assist DoD Components in conducting more timely searches,
requesters should endeavor to provide as much identifying information
as possible. When a DoD Component receives a request that does not
reasonably describe the requested record, it shall notify the requester
of the defect in writing. The requester should be asked to provide the
type of information outlined in paragraph (h)(2) of this section. DoD
Components are to obligated to act on the request until the requester
responds to the specificity letter. When practicable, DoD Components
shall offer assistance to the requester in identifying the records
sought and in reformulating the request to reduce the burden on the
agency in complying with the Act.
(2) The following guidelines are provided to deal with generalized
requests and are based on the principle of reasonable effort
(Descriptive information about a record may be divided into two broad
categories.):
(i) Category I is file-related and includes information such as
type of record (for example, memorandum), title, index citation,
subject area, date the record was created, and originator.
[[Page 35355]]
(ii) Category II is event-related and includes the circumstances
that resulted in the record being created or the date and circumstances
surrounding the event the record covers.
(3) Generally, a record is not reasonably described unless the
description contains sufficient Category I information to permit the
conduct of an organized, non random search based on the DoD Component's
filing arrangements and existing retrieval systems, or unless the
record contains sufficient Category II information to permit inference
of the Category I elements needed to conduct such a search.
(4) The following guidelines deal with requests for personal
records: Ordinarily, when personal identifiers are provided only in
connection with a request of records concerning the requester, only
records in a Privacy Act system of records that can be retrieved by
personal identifiers need be searched. However, if a DoD Component has
reason to believe that records on the requester may exist in a recoded
system other than a Privacy Act system, the DoD Component shall search
that system under the provisions of the FOIA. In either case, DoD
Components may request a reasonable description of teh records desired
before searching for such records under the provisions of the FOIA and
the Privacy Act. If the record is required to be released under the
FOIA, 5 U.S.C. 552a does not bar its disclosure. See paragraph (m) of
this section for the relationship between the FOIA and the Privacy Act.
(5) The precious guidelines notwithstanding, the decision of the
DoD Component concerning reasonableness of description must be based on
knowledge of its files. If the description enables DoD Component
personnel to locate the record with reasonable effort, the description
is adequate. The fact that a FOIA request is broad or burdensome in its
magnitude does not, in and of itself, entitle a DoD Component to deny
the request on the ground that it does not reasonably describe the
records sought. The key factor is the ability of the DoD Component's
staff to reasonably ascertain and locate which records are being
requested.
(i) Referrals. (1) The DoD FOIA referral policy is based upon the
concept of the originator of a record making a release determination on
its information. If a DoD Component receives a request for records
originated by another DoD Component, it shall contact the DoD Component
to determine if it also received the request, and if not, obtain
concurrence from the other DoD Component to refer the request. In
either situation, the requester shall be advised of the action taken,
unless exempt information would be revealed. While referrals to
originators of information result in obtaining the best possible
decision on release of the information, the policy does not relieve DoD
Components from the responsibility of making a release decision on a
record should the requester object to referral of the request and the
record. Should this situation occur, DoD Components shall still
coordinate with the originator of the information prior to making a
release determination. A request received by a DoD Component having no
records responsive to a request shall be referred routinely to another
DoD Component, if the other DoD Component has reason to believe it has
the requested record. Prior to notifying a requester of a referral to
another DoD Component, the DoD Component receiving the initial request
shall consult with the other DoD Component to determine if that DoD
Component's association with the material is exempt. If the association
is exempt, the DoD Component receiving the initial request will protect
the association and any exempt information without revealing the
identity of the protected DoD Component. The protected DoD Component
shall be responsible for submitting the justifications required in any
litigation. Any DoD Component receiving a request that has been
misaddressed shall refer the request to the proper address and advise
the requester. DoD Components making referrals of requests or records
shall include with the referral, a point of contact by name, a
telephone number, and an e-mail address.
(2) A DoD Component shall refer for response directly to the
requester, a FOIA request for a record that it holds to another DoD
Component or agency outside the DoD, if the record originated in the
other DoD Component or outside agency. Whenever a record or a portion
of a record is refered to another DoD Component or to a Government
Agency outside of the DoD for a release determination and direct
response, the requester shall be informed of the referral, unless it
has been determined that notification would reveal exempt information.
Referred records shall only be identified to the extent consistent with
security requirements.
(3) A DoD Component may refer a request for a record that it
originated to another DoD Component or agency when the other DoD
Component or agency has a valid interest in the record, or the record
was created for the use of the other DoD Component or agency. In such
situations, provide the record and a release recommendation on the
record with the referral action. An example of such a situation is a
request for audit reports prepared by the Defense Contract Audit
Agency. These advisory reports are prepared for the use of contracting
officers and their release to the audited contractor shall be at the
discretion of the contracting officer. A FOIS request shall be referred
to the appropriate DoD Component and the requester shall be notified of
the referral, unless exempt information would be revealed. Another
example is a record originated by a DoD Component or agency that
involves foreign relations, and could affect a DoD Component or
organization in a host foreign country. Such a request and any
responsive records my be referred to the affected DoD Component or
organization for consultation prior to a final release determination
within the Department of Defense. See also Sec. 286.22(e).
(4) Within the Department of Defense, a DoD Component shall
ordinarily refer a FOIA request and a copy of the record it holds, but
that was originated by another DoD Component or that contains
substantial information obtained from another DoD Component, to the
Component for direct response, after direct coordination and obtaining
concurrence from the Component. The requester then shall be notified of
such referral. DoD Components shall not, in any case, release or deny
such records without prior consultation with the other DoD Component,
except as provided in Sec. 286.22(e).
(5) DoD Components that receive referred requests shall answer them
in accordance with the time limits established by the FOIA, this part,
and their multitrack processing queues, based upon the date of initial
receipt of the request at the referring component or agency.
(6) Agencies outside the Department of Defense that are subject to
the FOIA.
(i) A DoD Component may refer a FOIA request for any record that
originated in an agency outside the Department of Defense or that is
based on information obtained from an outside agency to the agency for
direct response to the requester after coordination with the outside
agency, if that agency is subject to FOIA. Otherwise, the DoD Component
must respond to the request.
(ii) A DoD Component shall refer to the agency that provided the
record any FOIA request for investigative, intelligence, or any other
type of records that are on loan to the Department of Defense for a
specific purpose, if the
[[Page 35356]]
records are restricted from further release and so marked. However, if
for investigative or intelligence purposes, the outside agency desires
anonymity, a DoD Component may only respond directly to the requester
after coordination with the outside agency.
(7) DoD Components that receive requests for records of the
National Security Council (NSC), the White House, or the White House
Military Office (WHMO) shall process the requests. DoD records in which
the NSC or White House has a concurrent reviewing interest, and NSC,
White House, or WHMO records discovered in DoD Components' file shall
be forwarded to the Office of the Assistant Secretary of Defense
(Public Affairs) (OASD(PA)), Attn: Directorate For Freedom of
Information and Security Review (DFOISR). The DFOISR shall coordinate
with the NSC, White House, or WHMO and return the records to the
originating agency after coordination.
(8) To the extent referrals are consistent with the policies
expressed by this paragraph (i) referrals between offices of the same
DoD Component are authorized.
(9) On occasion, the Department of Defense receives FOIA requests
for General Accounting Office (GAO) records containing DoD information.
Even though the GAO is outside the Executive Branch, and not subject to
the FOIA, all FOIA requests for GAO documents containing DoD
information received either from the public, or on referral from the
GAO, shall be processed under the provisions of the FOIA.
(j) Authentication. Records provided under this part shall be
authenticated with an appropriate seal, whenever necessary, to fulfill
an official Government or other legal function. This service, however,
is in addition to that required under the FOIA and is not included in
the FOIA fee schedule. DoD Components may charge for the service at a
rate of $5.20 for each authentication.
(k) Combatant Commands. (1) The Combatant Commands are placed under
the jurisdiction of the OSD, instead of the administering Military
Department or the Chairman of the Joint Chiefs of Staff, only for the
purpose of administering the DoD FOIA Program. This policy represents
an exception to the policies directed in DoD Directive 5100.3,\3\ it
authorizes and requires the Combatant Commands to process FOIA requests
in accordance with DoD Directive 5400.7 and this part. The Combatant
Commands shall forward directly to the OASD(PA) all correspondence
associated with the appeal of an initial denial for records under the
provisions of the FOIA. Procedures to effect this administrative
requirement are outlined in appendix A to this part.
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\3\ See footnote 1 to Sec. 286.1(a).
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(2) Combatant Commands shall maintain an electronic reading room
for FOIA-processed 5 U.S.C. 552(a)(2)(D) records in accordance with
subpart B of this part. Records qualifying for this means of public
access also shall be maintained in hard copy for public access at
Combatant Commands' respective locations.
(l) Records management. FOIA records shall be maintained and
disposed of in accordance with the National Archives and Records
Administration General Records Schedule, and DoD Component records
schedules.
(m) Relationship between the FOIA and the Privacy Act (PA). Not all
requesters are knowledgeable of the appropriate statutory authority to
cite when requesting records. In some instances, they may cite neither
Act, but will imply one or both Acts. For these reasons, the following
guidelines are provided to ensure that requesters receive the greatest
amount of access rights under both Acts:
(1) If the record is required to be released under the FOIA, the
Privacy Act does not bear its disclosure. Unlike the FOIA, the Privacy
Act applies only to U.S. citizens and aliens admitted for permanent
residence.
(2) Requesters who seek records about themselves contained in a
Privacy Act system of records and who cite or imply only the Privacy
Act, will have their requests processed under the provisions of both
the Privacy Act and the FOIA. If the Privacy Act system of records is
exempt from the provisions of 5 U.S.C. 552a(d)(1), the requester shall
be so advised with the appropriate Privacy Act exemption, and then
further advised that the information was therefore reviewed for release
under the FOIA.
(3) Requesters who seek records about themselves that are not
contained in a Privacy Act system of records and who cite or imply the
Privacy Act will have their requests processed under the provisions of
the FOIA, since the Privacy Act does not apply to these records.
(4) Requesters who seek records about themselves that are contained
in a Privacy Act system of records and who cite or imply the FOIA or
both Acts will have their requests processed under the provisions of
both the Privacy Act and the FOIA. If the Privacy Act system of records
is exempt from the provisions of 5 U.S.C. 552a(d)(1) the requester
shall be so advised with the appropriate Privacy Act exemption, and
then further advised that the information was therefore reviewed for
release under the FOIA.
(5) Requesters who seek access to agency records that are not part
of a Privacy Act system of records, who cite or imply the Privacy Act
and FOIA, will have their requests processed under the FOIA since the
Privacy Act does not apply to these records.
(6) Requesters who seek access to agency records and who cite or
simply the FOIA will have their requests processed under the FOIA.
(7) Requesters shall be advised in final response which Act was
used.
(n) Non-responsive information in responsive records. DoD
Components shall interpret FOIA requests liberally when determining
which records are responsive to the requests, and may release non-
responsive information. However, should DoD Components desire to
withhold non-responsive information, the following steps shall be
accomplished.
(1) Consult with the requester, and ask if the requester views the
information as responsive, and if not, seek the requester's concurrence
to deletion of non-responsive information without a FOIA exemption.
Reflect this concurrence in the response letter.
(2) If the responsive record ``unclassified,'' and the requester
does not agree to deletion of non-responsive information without a FOIA
exemption, release all non-responsive and responsive information which
is not exempt. For non-responsive information that is exempt, notify
the requester that even if the information were determined responsive,
it would likely be exempt under (state appropriate exemption(s)).
Advise the requester of the right to request this information under a
separate FOIA request. The separate request shall be placed in the same
location within the processing queue as the original request.
(3) If the responsive record is ``classified,'' and the requester
does not agree to deletion of non-responsive information without a FOIA
exemption, release all unclassified responsive and non-responsive
information which is not exempt. If the non-responsive information is
exempt, follow the procedures in paragraph (n)(2) of this section. The
classified, non-responsive information need not be reviewed for
declassification at this point. Advise the requester than even if the
classified information were determined responsive, it would likely be
exempt under 5 U.S.C. 552(b)(1), and other
[[Page 35357]]
exemptions if appropriate. Advise the requester of the right to request
this information under separate FOIA request. The separate request
shall be placed in the same location within the processing queue as the
original request.
(o) Honoring form or format requests. DoD Components shall provide
the record in any form or format requested by the requester if the
record is readily reproducible in that form or format. DoD Components
shall make reasonable efforts to maintain their records in forms or
formats that are reproducible. In responsiding to requests for records,
DoD Components shall make reasonable efforts to search for records in
electronic form or format, except when such efforts would significantly
interfere with the operation of the DoD Components' automated
information system. Such determinations shall be made on a case by case
basis. See also paragraph (g)(2) of this section
Subpart B--FOIA Reading Rooms
Sec. 286.7 Requirements.
(a) Reading room. Each DoD Component shall provide an appropriate
facility or facilities where the public may inspect and copy or have
copied the records described in paragraph (b) of this section and
Sec. 286.8(a). In addition to the records described in paragraph (b) of
this section and Sec. 286.8(a), DoD Components may elect to place other
records in their reading room, and also make them electronically
available to the public. DoD Components may share reading room
facilities if the public is not unduly inconvenienced, and also may
establish decentralized reading rooms. When appropriate, the cost of
copying may be imposed on the person requesting the material in
accordance with the provisions of subpart F of this part.
(b) Record availability. The FOIA requires that records described
in 5 U.S.C. 552(a)(2)(A), (B), (C), and (D) created on or after
November 1, 1996, shall be made available electronically by November 1,
1997, as well as in hard copy in the FOIA reading room for inspection
and copying, unless such records are published and copies are offered
for sale. Personal privacy information, that if disclosed to a third
party requester, would result in an invasion of the first party's
personal privacy, and contractor submitted information, that if
disclosed to a competing contractor, would result in competitive harm
to the submitting contractor shall be deleted from all 5 U.S.C.
552(a)(2) records made available to the general public. In every case,
justification for the deletion must be fully explained in writing, and
the extent of such deletion shall be indicated on the record which is
made publicly available, unless such indication would harm an interest
protected by an exemption under which the deletion was made. If
technically feasible, the extent of the deletion in electronic records
or any other form of record shall be indicated at the place in the
record where the deletion was made. However, a DoD Component may
publish in the Federal Register a description of the basis upon which
it will delete identifying details of particular types of records to
avoid clearly unwarranted invasions of privacy, or competitive harm to
business submitters. In appropriate cases, the DoD Component may refer
to this description rather than write a separate justification for each
deletion. 5 U.S.C. 552(a)(2)(A), (B), (C), and (D) records are:
(1) (a)(2)(A) records. Final opinions, including concurring and
dissenting opinions, and orders made in the adjudication of cases, as
defined in 5 U.S.C. 552, that may be cited, used, or relied upon as
precedents in future adjudications.
(2) (a)(2)(B) records. Statements of policy and interpretations
that have been adopted by the agency and are not published in the
Federal Register.
(3) (a)(2)(C) records. Administrative staff manuals and
instructions, or portions thereof, that establish DoD policy or
interpretations of policy that affect a member of the public. This
provision does not apply to instructions for employees on tactics and
techniques to be used in performing their duties, or to instructions
relating only to the internal management of the DoD Component. Examples
of manuals and instructions not normally made available are:
(i) Those issued for audit, investigation, and inspection purposes,
or those that prescribe operational tactics, standards of performance,
or criteria for defense, prosecution, or settlement of cases.
(ii) Operations and maintenance manuals and technical information
concerning munitions, equipment, systems, and intelligence activities.
(4) (a)(2)(D) records. Those 5 U.S.C. 552(a)(3) records, which
because of the nature of the subject matter, have become or are likely
to become the subject of subsequent requests for substantially the same
records. These records are referred to as ``FOIA-processed (a)(2)
records.''
(i) DoD Components shall decide on a case by case basis whether
records fall into this category, based on the following factors:
(A) Previous experience of the DoD Component with similar records.
(B) Particular circumstances of the records involved, including
their nature and the type of information contained in them.
(C) The identity and number of requesters and whether there is
widespread press, historic, or commercial interest in the records.
(ii) This provision is intended for situations where public access
in a timely manner is important, and it is not intended to apply where
there may be a limited number of requests over a short period of time
from a few requesters. DoD Components may remove the records from this
access medium when the appropriate officials determine that access is
no longer necessary.
(iii) Should a requester submit a FOIA request for FOIA-processed
(a)(2) records, and insist that the request be processed, DoD
Components shall process the FOIA request. However, DoD Components have
no obligation to process a FOIA request for 5 U.S.C. 552 (a)(2) (A),
(B), and (C) records because these records are required to be made
public and not FOIA-processed under paragraph (a)(3) of the FOIA.
(iv) DoD Components have no obligation to provide electronic or
hard copy reading room access to any (a)(2) record (inclusive of FOIA-
processed (a)(2) records) originating outside their respective
organizations.
Sec. 286.8 Indexes.
(a) ``(a)(2)'' Materials. (1) Each DoD Component shall maintain in
each facility prescribed in Sec. 286.7(a), an index of materials
described in Sec. 286.7(b), that are issued, adopted, or promulgated,
after July 4, 1967. No ``(a)(2)'' materials issued, promulgated, or
adopted after July 4, 1967, that are not indexed and either made
available or published may be relied upon, used or cited as precedent
against any individual unless such individual has actual and-timely
notice of the contents of such materials. Such materials issued,
promulgated, or adopted before July 4, 1967, need not be indexed, but
must be made available upon request if not exempted under this part.
(2) Each DoD Component shall promptly published quarterly or more
frequently, and distribute, by sale or otherwise, copies of each index
of ``(a)(2)'' materials or supplements thereto unless it publishes in
the Federal Register an order containing a determination that
publication is unnecessary and impracticable. A copy
[[Page 35358]]
of each index or supplement not published shall be provided to a
requester at a cost not to exceed the direct cost of duplication as set
forth in subpart F of this part.
(3) Each index of ``(a)(2)'' materials or supplement thereto shall
be arranged topical or by descriptive words rather than by case name or
numbering system so that members of the public can readily locate
material. Case name and numbering arrangements, however, may also be
included for DoD Components convenience.
(4) A general index of FOIA-processed (a)(2) records referred to in
Sec. 286.7(b)(4), shall be made available to the public, both in hard
copy and electronically by December 31, 1999.
(b) Other materials. (1) Any available index of DoD Component
material published in the Federal Register, such as material required
to be published by Section 552(a)(1) of the FOIA, shall be made
available in DoD Component FOIA reading rooms, and electronically to
the public.
(2) Although not required to be made available in response to FOIA
requests or made available in FOIA Reading Rooms, ``(a)(1)'' materials
shall, when feasible, be made available to the public in FOIA reading
rooms for inspection and copying, and by electronic means. Examples of
``(a)(1)'' materials are: descriptions of any agency's central and
field organization, and to the extent they affect the public, rules of
procedures, descriptions of forms available, instruction as to the
scope and contents of papers, reports, or examinations, and any
amendment, revision, or report of the aforementioned.
Subpart C--Exemptions
Sec. 286.11 General provisions.
Records that meet the exemption criteria of the FOIA may be
withheld from public disclosure and need not be published in the
Federal Register, made available in a library reading room, or provided
in response to a FOIA request.
Sec. 286.12 Exemptions.
FOIA exemptions. The following types of records may be withheld in
whole or in part from public disclosure under the FOIA, unless
otherwise prescribed by law: (A discretionary release of a record (see
also Sec. 286.4(e)) to one requester shall prevent the withholding of
the same record under a FOIA exemption if the record is subsequently
requested by someone else. However, a FOIA exemption may be invoked to
withhold information that is similar or related that has been the
subject of a discretionary release. In applying exemptions, the
identity of the requester and the purpose for which the record is
sought are irrelevant with the exception that an exemption may not be
invoked where the particular interest to be protected is the
requester's interest.)
(a) Number 1 (5 U.S.C. 552(b)(1)). Those properly and currently
classified in the interest of national defense or foreign policy, as
specifically authorized under the criteria established by Executive
Order and implemented by regulations, such as DoD 5200.1-R.\4\ Although
material is not classified at the time of the FOIA request, a
classification review may be undertaken to determine whether the
information should be classified. The procedures in DoD 5200.1-R apply.
If the information qualifies as exemption 1 information, there is no
discretion regarding its release. In addition, this exemption shall be
invoked with the following situations are apparent:
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\4\ See footnote 1 to Sec. 286.1(a).
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(1) The fact if the existence or nonexistence of a record would
itself reveal classified information. In this situation, Components
shall neither confirm nor deny the existence or nonexistence of the
record being requested. A ``refusal to confirm or deny'' response must
be used consistently, not only when a record exists, but also when a
record does not exist. Otherwise, the pattern of using a ``no record''
response when a record does not exist, and a ``refusal to confirm or
deny'' when a record does exist will itself disclose national security
information.
(2) Compilations of items of information that are individually
unclassified may be classified it the compiled information reveals
additional association or relationship that meets the standard for
classification under existing executive order for classification and
DoD 5200.1-R, and is not otherwise revealed in the individual items of
information.
(b) Number 2 (5 U.S.C. 552(b)(2)). Those related solely to the
internal personnel rules and practice of the Department of Defense or
any of its Components. This exemption is entirely discretionary. This
exemption has two profiles, high (b)(2) and low (b)(2). Paragraph
(b)(2) of this section contains a brief discussion on the low (b)(2)
profile; however. that discussion is for information purposes only.
When only a minimum Government interest would be affected
(administrative burden), there is a great potential for discretionary
disclosure of the information. Consequently, DoD Components shall not
invoke the low (b)(2) profile.
(1) Records qualifying under high (b)(2) are those containing or
constituting statutes, rules, regulations, orders, manuals, directives,
instructions, and security classification guides the release of which
would allow circumvention of these records thereby substantially
hindering the effective performance of a significant function of the
Department of Defense. Examples include:
(i) Those operating rules, guidelines, and manuals for DoD
investigators, inspectors, auditors, or examiners that must remain
privileged in order for the DoD Component to fulfill a legal
requirement.
(ii) Personnel and other administrative matters, such as
examination questions and answers used in training courses or in the
determination of the qualifications of candidates for employment,
entrance on duty, advancement, or promotion.
(iii) Computer software, the release of which would allow
circumvention of a statute or DoD rules, regulations, orders, manuals,
directives, or instructions. In this situation, the use of the software
must be closely examined to ensure a circumvention possibility exists.
(2) Records qualifying under the low (b)(2) profile are those that
are trivial and housekeeping in nature for which there is not
legitimate public interest or benefit to be gained by release, and it
would constitute an administrative burden to process the request in
order to disclose the records. Examples include rules of personnel's
use of parking facilities or regulation of lunch hours, statements of
policy as to sick leave, and administrative data such as file numbers,
mail routing stamps, initials, data processing notations, brief
references to previous communications, and other like administrative
markings. DoD Components shall not invoke the low (b)(2) profile.
(c) Number 3 (5 U.S.C. 552 (b)(3)). Those concerning matters that a
statute specifically exempts from disclosure by terms that permit no
discretion on the issue, or in accordance with criteria established by
that statute for withholding or referring to particular types of
matters to be withheld. The Directorate for Freedom of information and
Security Review, Office of the Assistant Secretary of Defense for
Public Affairs maintains a list of (b)(3) statutes used within the
Department of Defense, and provides updated lists of these statutes to
DoD Components on a periodic basis. A few examples of such statutes
are:
[[Page 35359]]
(1) Patent Secrecy, 35 U.S.C. 181-188. Any records containing
information relating to inventions that are the subject of patent
applications on which Patent Secrecy Orders have been issued.
(2) Restricted Data and Formerly Restricted Data, 42 U.S.C. 2162.
(3) Communication Intelligence, 18 U.S.C. 798.
(4) Authority to Withhold From Public Disclosure Certain Technical
Data, 10 U.S.C. 130 and DoD Directive 5230.25.\5\
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\5\ See footnote 1 Sec. 286.1(a).
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(5) Confidentiality of Medical Quality Assurance Records: Qualified
Immunity for Participants, 10 U.S.C. 1102f.
(6) Physical Protection of Special Nuclear Material: Limitation on
Dissemination of Unclassified Information, 10 U.S.C. 128.
(7) Protection of Intelligence Sources and Methods, 50 U.S.C. 403-
3(c)(5).
(8) Protection of Contractor Submitted Proposals, 10 U.S.C.
2305(g).
(9) Procurement Integrity, 41 U.S.C. 423.
(d) Number 4 (5 U.S.C. 552(b)(4)). Those containing trade secrets
or commercial or financial information that a DoD Component receives
from a person or organization outside the Government with the
understanding that the information or record will be retained on a
privileged or confidential basis in accordance with the customary
handling of such records. Records within the exemption must contain
trade secrets, or commercial or financial records, the disclosure of
which is likely to cause substantial harm to the competitive position
of the source providing the information; impair the Government's
ability to obtain necessary information in the future; or impair some
other legitimate Government interest. Commercial or financial
information submitted on a voluntary basis, absent any exercised
authority prescribing criteria for submission is protected without any
requirement to show competitive harm (see paragraph (d)(8) of this
section). If the information qualifies as exemption 4 information,
there is no discretion in its release. Examples include:
(1) Commercial or financial information received in confidence in
connection with loans, bids, contracts, or proposals set forth in or
incorporated by reference in a contract entered into between the DoD
Component and the offeror that submitted the proposal, as well as other
information received in confidence or privileged, such as trade
secrets, inventions, discoveries, or other proprietary data. See also
Sec. 286.23(h)(2). Additionally, when the provisions of 10 U.S.C.
2305(g) and 41 U.S.C. 423 are met, certain proprietary and source
selection information may be withheld under exemption 3.
(2) Statistical data and commercial or financial information
concerning contract performance, income, profits, losses, and
expenditures, if offered and received in confidence from a contractor
or potential contractor.
(3) Personal statements given in the course of inspections,
investigations, or--audits, when such statements are received in
confidence from the individual and retained in confidence because they
reveal trade secrets or commercial or financial information normally
considered confidential or privileged.
(4) Financial data provided in confidence by private employers in
connection with locality wage surveys that are used to fix and adjust
pay schedules applicable to the prevailing wage rate of employees
within the Department of Defense.
(5) Scientific and manufacturing processes or developments
concerning technical or scientific data or other information submitted
with an application for a research grant, or with a report while
research is in progress.
(6) Technical or scientific data developed by a contractor or
subcontractor exclusively at private expense, and technical or
scientific data developed in part with Federal funds and in part at
private expense, wherein the contractor or subcontractor has retained
legitimate proprietary interests in such data in accordance with 10
U.S.C. 2320-2321 and DoD Federal Acquisition Regulation Supplement
(DFARS), Chapter 2 of 48 CFR, subpart 227.71-227.72. Technical data
developed exclusively with Federal funds may be withheld under
Exemption Number 3 if it meets the criteria of 10 U.S.C. 130 and DoD
Directive 5230.25 (see paragraph (c)(5) of this section).
(7) Computer software which is copyrighted under the Copyright Act
of 1976 (17 U.S.C. 106), the disclosure of which would have an adverse
impact on the potential market value of a copyrighted work.
(8) Proprietary information submitted strictly on a voluntary
basis, absent any exercised authority prescribing criteria for
submission. Examples of exercised authorities prescribing criteria for
submission are statutes, Executive Orders, regulations, invitations for
bids, requests for proposals, and contracts. Submission of information
under these authorities is not voluntary. (See also Sec. 286.23(h)(3))
(e) Number 5 (5 U.S.C. 552 (b)(5)). Those containing information
considered privileged in litigation, primarily under the deliberative
process privilege. Except as provided in paragraphs (e)(2) through
(e)(5) of this section internal advice, recommendations, and subjective
evaluations, as contrasted with factual matters, that are reflected in
deliberative records pertaining to the decision-making process of an
agency, whether within or among agencies (as defined in 5 U.S.C.
552(e)), or within or among DoD Components. In order to meet the test
of this exemption, the record must be both deliberative in nature, as
well as part of a decision-making process. Merely being an internal
record in insufficient basis for withholding under this exemption. Also
potentially exempted are records pertaining to the attorney-client
privilege and the attorney work-product privilege. This exemption is
entirely discretionary.
(1) Examples of the deliberative process include:
(i) The non factual portions of staff papers, to include after-
action reports, lessons learned, and situation reports containing staff
evaluations, advice, opinions, or suggestions.
(ii) Advice, suggestions, or evaluations prepared on behalf of the
Department of Defense by individual consultants or by boards,
committees, councils, groups, panels, conferences, commissions, task
forces, or other similar groups that are formed for the purpose of
obtaining advice and recommendations.
(iii) Those non factual portions of evaluations by DoD Component
personnel of contractors and their products.
(iv) Information of a speculative, tentative, or evaluative nature
or such matters as proposed plans to procure, lease or otherwise
acquire and dispose of materials, real estate, facilities or functions,
when such information would provide undue or unfair competitive
advantage to private personal interests or would impede legitimate
government functions.
(v) Trade secret or other confidential research development, or
commercial information owned by the Government, where premature release
is likely to affect the Government's negotiating position or other
commercial interest.
(vi) Records that are exchanged among agency personnel and within
and among DoD Components or Agencies as part of the preparation for
anticipated administrative proceeding by an Agency or litigation before
any Federal, State, or military court, as well as records that quality
for the attorney-client privilege.
[[Page 35360]]
(vii) Those portions of official reports of inspection, reports of
the Inspector Generals, audits, investigations, or surveys pertaining
to safety, security, or the internal management, administration, or
operation of one or more DoD Components, when these records have
traditionally been treated by the courts as privileged against
disclosure in litigation.
(viii) Planning, programming, and budgetary information that is
involved in the defense planning and resource allocation process.
(2) If any such intra- or inter-agency record or reasonably
segregable portion of such record hypothetically would be made
available routinely through the discovery process in the course of
litigation with the Agency, then it should not be withheld under the
FOIA. If, however, the information hypothetically would not be released
at all, or would only be released in a particular case during civil
discovery where a party's particularized showing of need might override
a privilege, then the record may be withheld. Discovery is the formal
process by which litigants obtain information from each other for use
in the litigation. Consult with legal counsel to determine whether
exemption 5 material would be routinely made available through the
discover process.
(3) Intra- or inter-agency memoranda or letters that are factual,
or those reasonably segregable portions that are factual, are routinely
made available through discovery, and shall be made available to a
requester, unless the factual material is otherwise exempt from
release, inextricably intertwined with the exemption information, so
fragmented as to be uninformative, or so redundant of information
already available to the requester as to provide no new substantive
information.
(4) A direction or order from a superior to a subordinate, though
contained in an internal communication, generally cannot be withheld
from a requester if it constitutes policy guidance or a decision, as
distinguished from a discussion of preliminary matters or a request for
information or advice that would compromise the decision-making
process.
(5) An internal communication concerning a decision that
subsequently has been made a matter of public record must be made
available to a requester when the rationale for the decision is
expressly adopted or incorporated by reference in the record containing
the decision.
(f) Number 6 (5 U.S.C. 552(b)(6)). Information in personnel and
medical files, as well as similar personal information in other files,
that, if disclosed to a requester, other than the person about whom the
information is about, would result in a clearly unwarranted invasion of
personal privacy. Release of information about an individual contained
in a Privacy Act System of records that would constitute a clearly
unwarranted invasion of privacy is prohibited, and could subject the
releaser to civil and criminal penalties. If the information qualifies
as exemption 6 information, there is no discretion in its release.
(1) Examples of other files containing personal information similar
to that contained in personnel and medical files include:
(i) Those compiled to evaluate or adjudicate the suitability of
candidates for civilian employment or membership in the Armed Forces,
and the eligibility of individuals (civilian, military, or contractor
employees) for security clearances, or for access to particularly
sensitive classified information.
(ii) Files containing reports, records, and other material
pertaining to personnel matters in which administrative action,
including disciplinary action, may be taken.
(2) Home addresses are normally not releasable without the consent
of the individuals concerned. This includes lists of home addresses and
military quarters' addresses without the occupant's name. In addition,
DoD military and civilian personnel's names and duty addresses who are
assigned to units that are sensitive, routinely deployable, or
stationed in foreign territories can constitute a clearly unwarranted
invasion of personal privacy.
(i) Privacy Interest. A privacy interest may exist in personal
information even though the information has been disclosed at some
place and time. If personal information is not freely available from
sources other than the Federal Government, a privacy interest exists in
its nondisclosure. The fact that the Federal Government expended funds
to prepare, index and maintain records on personal information, and the
fact that a requester invokes FOIA to obtain these records indicates
the information is not freely available.
(ii) Names and duty addresses published in telephone directories,
organizational charts, rosters and similar materials for personnel
assigned to units that are sensitive, routinely deployable, or
stationed in foreign territories are withholdable under this exemption.
(3) This exemption shall not be used in an attempt to protect the
privacy of a deceased person, but it may be used to protect the privacy
of the deceased person's family if disclosure would rekindle grief,
anguish, pain, embarrassment, or even disruption of peace of mind of
surviving family members. In such situations, balance the surviving
family members' privacy against the public's right to know to determine
if disclosure is in the public interest. Additionally, the deceased's
social security number should be withheld since it is used by the next
of kin to receive benefits. Disclosures may be made to the immediate
next of kin as defined in DoD Directive 5154.24 \6\.
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\6\ See footnote 1 to Sec. 286.1(a).
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(4) When the subject of an investigative report is the requester of
the record and the report is contained in a Privacy Act system of
records, it may only be denied to the requester if withholding is both
authorized by DoD 5400.11-R \7\, and by exemption 6 of the FOIA.
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\7\ See footnote 1 to Sec. 286.1(a).
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(5) A clearly unwarranted invasion of the privacy of third parties
identified in a personnel, medical or similar record constitutes a
basis for deleting those reasonably segregable portions of that record.
When withholding third party personal information from the subject of
the record and the record is contained in a Privacy Act system of
records, consult with legal counsel.
(6) This exemption also applies when the fact of the existence or
nonexistence of a responsive record would itself reveal personally
private information, and the public interest in disclosure is not
sufficient to outweigh the privacy interest. In this situation, DoD
Components shall neither confirm nor deny the existence or nonexistence
of the record being requested. This is a Glomar response, and exemption
6 must be cited in the response. Additionally, in order to insure
personal privacy is not violated during referrals, DoD Components shall
coordinate with other DoD Components or Federal Agencies before
referring a record that is exempt under the Glomar concept.
(i) A ``refusal to confirm or deny'' response must be used
consistently, not only when a record exists, but also when a record
does not exist. Otherwise, the pattern of using a ``no records''
response when a record does not exist and a ``refusal to confirm or
deny'' when a record does exist will itself disclose personally private
information.
(ii) Refusal to confirm or deny should not be used when:
(A) The person whose personal privacy is in jeopardy has provided
the
[[Page 35361]]
requester a waiver of his or her privacy rights;
(B) The person initiated or directly participated in an
investigation that lead to the creation of an agency record seeks
access to that record; or
(C) the person whose personal privacy is in jeopardy is deceased,
the Agency is aware of that fact, and disclosure would not invade the
privacy of the deceased's family. See paragraph (f) (3) of this
section.
(g) Number 7 (5 U.S.C. 552(b)(7)). Records or information compiled
for law enforcement purposes; i.e., civil, criminal, or military law,
including the implementation of Executive Orders or regulations issued
pursuant to law. This exemption may be invoked to prevent disclosure of
documents not originally created for, but later gathered for law
enforcement purposes. With the exception of parts (C) and (F) (see
paragraph (g)(1)(iii) of this section) exemption 7 of the FOIA, this
exemption is discretionary. If information qualifies as exemption
(7)(C) or (7)(F) of the FOIA (see paragraph (g)(1)(iii) of this
section) information, there is no discretion in its release.
(1) This exemption applies, however, only to the extent that
production of such law enforcement records or information could result
in the following:
(i) Could reasonably be expected to interfere with enforcement
proceedings (5 U.S.C. 552(b)(7)(A)).
(ii) Would deprive a person of the right to a fair trial or to an
impartial adjudication (5 U.S.C. 552(b)(7)(B)).
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy of a living person, including surviving
family members of an individual identified in such a record (5 U.S.C.
552(b)(7)(C)).
(A) This exemption also applies when the fact of the existence or
nonexistence of a responsive record would itself reveal personally
private information, and the public interest in disclosure is not
sufficient to outweigh the privacy interest. In this situation,
Components shall neither confirm nor deny the existence or nonexistence
of the record being requested. This is a Glomar response, and exemption
(7)(C) must be cited in the response. Additionally, in order to insure
personal privacy is not violated during referrals, DoD Components shall
coordinate with other DoD Components or Federal Agencies before
referring a record that is exempt under the Glomar concept.
(B) A ``refusal to confirm or deny'' response must be used
consistently, not only when a record exists, but also when a record
does not exist. Otherwise, the pattern of using a ``no records''
response when a record does not exist and a ``refusal to confirm or
deny'' when a record does exist will itself disclose personally private
information.
(C) Refusal to confirm or deny should not be used when:
(1) The person whose personal privacy is in jeopardy has provided
the requester with a waiver of his or her privacy rights; or
(2) The person whose personal privacy is in jeopardy is deceased,
and the Agency is aware of that fact.
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a source within the Department of
Defense; a State, local, or foreign agency or authority; or any private
institution that furnishes the information on a confidential basis; and
could disclose information furnished from a confidential source and
obtained by a criminal law enforcement authority in a criminal
investigation or by an agency conducting a lawful national security
intelligence investigation (5 U.S.C. 552(b)(7)(D)).
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law (5 U.S.C.
552(b)(7)(E)).
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual (5 U.S.C. 552(b)(7)(F)).
(2) Some examples of exemption 7 are:
(i) Statements of witnesses and other material developed during the
course of the investigation and all materials prepared in connection
with related Government litigation or adjudicative proceedings.
(ii) The identity of firms or individuals being investigated for
alleged irregularities involving contracting with the Department of
Defense when no indictment has been obtained nor any civil action filed
against them by the United States.
(iii) Information obtained in confidence, expressed or implied, in
the course of a criminal investigation by a criminal law enforcement
agency or office within a DoD Component, or a lawful national security
intelligence investigation conducted by an authorized agency or office
within a DoD Component. National security intelligence investigations
include background security investigations and those investigations
conducted for the purpose of obtaining affirmative or
counterintelligence information.
(3) The right of individual litigants to investigative records
currently available by law (such as, the Jencks Act, 18 U.S.C. 3500) is
not diminished.
(4) When the subject of an investigative report is the requester of
the record and the report is contained in a Privacy Act system of
records, it may only be denied to the requester if withholding is both
authorized by DoD 5400.11R, and by exemption 7 of the FOIA.
(5) Exclusions. Excluded from the exemption in this paragraph (g),
are the following two situations applicable to the Department of
Defense (Components considering invoking an exclusion should first
consult with the Department of Justice, Office of Information and
Privacy.):
(i) Whenever a request is made that involves access to records or
information compiled for law enforcement purposes, and the
investigation or proceeding involves a possible violation of criminal
law where there is reason to believe that the subject of the
investigation or proceeding is unaware of its pendency, and the
disclosure of the existence of the records could reasonably be expected
to interfere with enforcement proceedings, Components may, during only
such times as that circumstance continues, treat the records or
information as not subject to the FOIA. In such situation, the response
to the requester will state that no records were found.
(ii) Whenever informant records maintained by a criminal law
enforcement organization within a DoD Component under the informant's
name or personal identifier are requested by a third party using the
informant's name or personal identifier, the Component may treat the
records as not subject to the FOIA, unless the informant's status as an
informant has been officially confirmed. If it is determined that the
records are not subject to 5 U.S.C. 552(b)(7), the response to the
requester will state that no records were found.
(h) Number 8 (5 U.S.C. 552(b)(8)). Those contained in or related to
examination, operation or condition reports prepared by, on behalf of,
or for the use of any agency responsible for the regulation or
supervision of financial institutions.
(i) Number 9 (5 U.S.C. 552(b)(9)). Those containing geological and
geophysical information and data (including maps) concerning wells.
[[Page 35362]]
Subpart D--For Official Use Only
Sec. 286.15 General provisions.
(a) General. Information that has not been given a security
classification pursuant to the criteria of an Executive Order, but
which may be withheld from the public for one or more of the reasons
cited in FOIA exemptions 2 through 9 (see subpart C of this part) shall
be considered as being for official use only. No other material shall
be considered or marked ``For Official Use Only'' (FOUO), and FOUO is
not authorized as an anemic form of classification to protect national
security interests. Additional information on FOUO and other
controlled, unclassified information may be found in DoD 5200.1-R.
(b) Prior FOUO application. The prior application of FOUO markings
is not a conclusive basis for withholding a record that is requested
under the FOIA. When such a record is requested, the information in it
shall be evaluated to determine whether, under current circumstances,
FOIA exemptions apply in withholding the record or portions of it. If
any exemptions apply, the record may nonetheless be released as a
discretionary matter when it is determined that no governmental
interest will be jeopardized by its release.
(c) Historical papers. Records such as notes, working papers, and
drafts retained as historical evidence of DoD Component actions enjoy
no special status apart from the exemptions under the FOIA.
(d) Time to mark records. The marking of records at the time of
their creation provides notice of FOUO content and facilitates review
when a record is requested under the FOIA. Records requested under the
FOIA that do not bear such markings shall not be assumed to be
releasable without examination for the presence of information that
requires continued protection and qualifies as exempt from public
release.
(e) Distribution statement. Information in a technical document
that requires a distribution statement pursuant to DoD Directive
5230.24 \8\ shall bear that statement and may be marked FOUO, as
appropriate.
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\8\ See footnote 1 to Sec. 286.1(a).
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Sec. 286.16 Markings.
Location of markings:
(a) An unclassified document containing FOUO information shall be
marked ``For Official Use Only'' at the bottom on the outside of the
front cover (if any), on each page containing FOUO information, and on
the outside of the back cover (if any).
(b) Within a classified document, an individual page that contains
both FOUO and classified information shall be marked at the top and
bottom with the highest security classification of information
appearing on the page. Individual paragraphs shall be marked at the
appropriate classification level, as well as unclassified or FOUO, as
appropriate.
(c) Within a classified document, an individual page that contains
FOUO information but no classified information shall be marked ``For
Official Use Only'' at the top and bottom of the page.
(d) Other records, such as photographs, films, tapes, or slides,
shall be marked ``For Official Use Only'' or ``FOUO'' in a manner that
ensures that a recipient or viewer is aware of the status of the
information therein.
(e) FOUO material transmitted outside the Department of Defense
requires application of an expanded marking to explain the significance
of the FOUO marking. This may be accomplished by typing or stamping the
following statement on the record prior to transfer.
This document contains information EXEMPT FROM MANDATORY
DISCLOSURE under the FOIA. Exemption(s) . . . . . applies/apply.
Sec. 286.17 Dissemination and transmission.
(a) Release and transmission procedures. Until FOUO status is
terminated, the release and transmission instructions that follow
apply:
(1) FOUO information may be disseminated within DoD Components and
between officials of DoD Components and DoD contractors, consultants,
and grantees to conduct official business for the Department of
Defense. Recipients shall be made aware of the status of such
information, and transmission shall be by means that preclude
unauthorized public disclosure. Transmittal documents shall call
attention to the presence of FOUO attachments.
(2) DoD holders of FOUO information are authorized to convey such
information to officials in other Departments and Agencies of the
Executive and Judicial Branches to fulfill a government function,
except to the extent prohibited by the Privacy Act. Records thus
transmitted shall be marked ``For Official Use Only,'' and the
recipient shall be advised that the information may qualify for
exemption from public disclosure, pursuant to the FOIA, and that
special handling instructions do or do not apply.
(3) Release of FOUO information to Members of Congress is governed
by DoD Directive 5400.4.\9\ Release to the GAO is governed by DoD
Directive 7650.1.\10\ Records released to the Congress or GAO should be
reviewed to determine whether the information warrants FOUO status. If
not, prior FOUO markings shall be removed or effaced. If withholding
criteria are met, the records shall be marked FOUO and the recipient
provided an explanation for such exemption and marking. Alternatively,
the recipient may be requested, without marking the record, to protect
against its public disclosure for reasons that are explained.
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\9\ See footnote 1 to Sec. 286.1(a).
\10\ See footnote 1 to Sec. 286.1(a).
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(b) Transporting FOUO information. Records containing FOUO
information shall be transported in a manner that prevents disclosure
of the contents. When not commingled with classified information, FOUO
information may be sent via first-class mail or parcel post. Bulky
shipments, such as distributions of FOUO Directives or testing
materials, that otherwise qualify under postal regulations, may be sent
by fourth-class mail.
(c) Electronically and facsimile transmitted messages. Each part of
electronically and facsimile transmitted messages containing FOUO
information shall be marked appropriately. Unclassified messages
containing FOUO information shall contain the abbreviation ``FOUO''
before the beginning of the text. Such messages and facsimiles shall be
transmitted in accordance with communications security procedures
whenever practicable.
Sec. 286.18 Safeguarding FOUO information.
(a) During duty hours. During normal working hours, records
determined to be FOUO shall be placed in an out-of-sight location if
the work area is accessible to non-government personnel.
(b) During nonduty hours. At the close of business, FOUO records
shall be stored so as to prevent unauthorized access. Filing such
material with other unclassified records in unlocked files or desks,
etc., is adequate when normal U.S. Government or Government-contractor
internal building security is provided during nonduty hours. When such
internal security control is not exercised, locked buildings or rooms
normally provide adequate after-hours protection. If such protection is
not considered adequate, FOUO material shall be stored in locked
receptacles such as file cabinets, desks, or bookcases. FOUO records
that are
[[Page 35363]]
subject to the provisions of 50 U.S.C. 402 note shall meet the
safeguards outlined for that group of records.
Sec. 286.19 Termination, disposal and unauthorized disclosure.
(a) Termination. The originator or other competent authority; e.g.,
initial denial and appellate authorities, shall terminate ``For
Official Use Only'' markings or status when circumstances indicate that
the information no longer requires protection from public disclosure.
When FOUO status is terminated, all known holders shall be notified, to
the extent practical. Upon notification, holders shall efface or remove
the ``For Official Use Only'' markings, but records in file or storage
need not be retrieved solely for that purpose.
(b) Disposal. (1) Nonrecord copies of FOUO materials may be
destroyed by tearing each copy into pieces to prevent reconstructing,
and placing them in regular trash containers. When local circumstances
or experience indicates that this destruction method is not
sufficiently protective of FOUO information, local authorities may
direct other methods but must give due consideration to the additional
expense balanced against the degree of sensitivity of the type of FOUO
information contained in the records.
(2) Record copies of FOUO documents shall be disposed of in
accordance with the disposal standards established under 44 U.S.C.
3301-3314, as implemented by DoD Component instructions concerning
records disposal.
(c) Unauthorized disclosure. The unauthorized disclosure of FOUO
records does not constitute an unauthorized disclosure of DoD
information classified for security purposes. Appropriate
administrative action shall be taken, however, to fix responsibility
for unauthorized disclosure whenever feasible, and appropriate
disciplinary action shall be taken against those responsible.
Unauthorized disclosure of FOUO information that is protected by the
Privacy Act may also result in civil and criminal sanctions against
responsible persons. The DoD Component that originated the FOUO
information shall be informed of its unauthorized disclosure.
Subpart E--Release and Processing Procedures
Sec. 286.22 General provisions.
(a) Public information. (1) Since the policy of the Department of
Defense is to make the maximum amount of information available to the
public consistent with its other responsibilities, written requests for
a DoD record made under the provisions of 5 U.S.C. 552(a)(3) of the
FOIA may be denied only when:
(i) Disclosure would result in a foreseeable harm to an interest
protected by a FOIA exemption, and the record is subject to one or more
of the exemptions of the FOIA.
(ii) The record has not been described well enough to enable the
DoD Component to locate it with a reasonable amount of effort by an
employee familiar with the files.
(iii) The requester has failed to comply with the procedural
requirements, including the written agreement to pay or payment of any
required fee imposed by the instructions of the DoD Component
concerned. When personally identifiable information in a record is
requested by the subject of the record or his attorney, notarization of
the request, or a statement certifying under the penalty of perjury
that their identity is true and correct may be required. Additionally,
written consent of the subject of the record is required for disclosure
from a Privacy Act System of records, even to the subject's attorney.
(2) Individuals seeking DoD information should address their FOIA
requests to one of the addresses listed in Appendix B to this part.
(b) Requests from private parties. The provisions of the FOIA are
reserved for persons with private interests as opposed to U.S. Federal
Agencies seeking official information. Requests from private persons
will be made in writing, and should clearly show all other addressees
within the Federal Government to which the request was also sent. This
procedure will reduce processing time requirements, and ensure better
inter- and intra-agency coordination. However, if the requester does
not show all other addressees to which the request was also sent, DoD
Components shall still process the request. DoD Components should
encourage requesters to send requests by mail, facsimile, or by
electronic means. Disclosure of records to individuals under the FOIA
is considered public release of information, except as provided for in
Sec. 286.4(f) and Sec. 286.12.
(c) Requests from government officials. Requests from officials of
State or local Governments for DoD Component records shall be
considered the same as any other requester. Requests from members of
Congress not seeking records on behalf of a Congressional Committee,
Subcommittee, either House sitting as a whole, or made on behalf of
their constituents shall be considered the same as any other requester
(see also Sec. 286.4(f) and paragraph (d) of this section). Requests
from officials of foreign governments shall be considered the same as
any other requester. Requests from officials of foreign governments
that do not invoke the FOIA shall be referred to appropriate foreign
disclosure channels and the requester so notified.
(d) Privileged release to U.S. government officials. (1) Records
exempt from release to the public under the FOIA may be disclosed in
accordance with DoD Component regulations to agencies of the Federal
Government, whether legislative, executive, or administrative, as
follows:
(i) In response to a request of a Committee or Subcommittee of
Congress, or to either House sitting as a whole in accordance with DoD
Directive 5400.4;
(ii) To other Federal Agencies, both executive and administrative,
as determined by the head of a DoD Component or designee;
(iii) In response to an order of a Federal court, DoD Components
shall release information along with a description of the restrictions
on its release to the public.
(2) DoD Components shall inform officials receiving records under
the provisions of this paragraph that those records are exempt from
public release under the FOIA. DoD Components also shall advise
officials of any special handling instructions. Classified information
is subject to the provisions of DoD 5200.1-R, and information contained
in Privacy Act systems of records is subject to DoD 5400.11-R.
(e) Consultation with affected DoD component. (1) When a DoD
Component receives a FOIA request for a record in which an affected DoD
organization (including a Combatant Command) has a clear and
substantial interest in the subject matter, consultation with that
affected DoD organization is required. As an example, where a DoD
Component receives a request for records related to DoD operations in a
foreign country, the cognizant Combatant Command for the area involved
in the request shall be consulted before a release is made.
Consultations may be telephonic, electronic, or in hard copy.
(2) The affected DoD Component shall review the circumstances of
the request for host-nation relations, and provide, where appropriate,
FOIA processing assistance to the responding DoD Component regarding
release of information. Responding DoD
[[Page 35364]]
Components shall provide copies of responsive records to the affected
DoD Component when requested by the affected DoD Component. The
affected DoD Component shall receive a courtesy copy of all releases in
such circumstances.
(3) Nothing in paragraphs (e)(1) and (e)(2) of this section shall
impede the processing of the FOIA request initially received by a DoD
Component.
Sec. 286.23 Initial determinations.
(a) Initial denial authority. (1) Components shall limit the number
of IDAs appointed. In designating its IDAs, a DoD Component shall
balance the goals of centralization of authority to promote uniform
decisions and decentralization to facilitate responding to each request
within the time limitations of the FOIA.
(2) The initial determination whether to make a record available
upon request may be made by any suitable official designated by the DoD
Component in published regulations. The presence of the marking ``For
Official Use Only'' does not relieve the designated official of the
responsibility to review the requested record for the purpose of
determining whether an exemption under the FOIA is applicable.
(3) The officials designated by DoD Components to make initial
determinations should consult with public affairs officers (PAOs) to
become familiar with subject matter that is considered to be
newsworthy, and advise PAOs of all requests from news media
representatives. In addition, the officials should inform PAOs in
advance when they intend to withhold or partially withhold a record, if
it appears that the withholding action may be challenged in the media.
(b) Reasons for not releasing a record. There are seven reasons for
not complying with a request for a record under 5 U.S.C. 552(a)(3):
(1) The request is transferred to another DoD Component, or to
another Federal Agency.
(2) The DoD Component determines through knowledge of its files and
reasonable search efforts that it neither controls nor otherwise
possesses the requested record.
(3) A record has not been described with sufficient particularity
to enable the DoD Component to locate it by conducting a reasonable
search.
(4) The requester has failed unreasonably to comply with procedural
requirements, including payment of fees, imposed by this part or DoD
Component supplementing regulations.
(5) The request is withdrawn by the requester.
(6) The information requested is not a record within the meaning of
the FOIA and this part.
(7) The record is denied in whole or in part in accordance with
procedures set forth in the FOIA and this part.
(c) Denial tests. To deny a requested record that is in the
possession and control of a DoD Component, it must be determined that
disclosure of the record would result in a foreseeable harm to an
interest protected by a FOIA exemption, and the record is exempt under
one or more of the exemptions of the FOIA. An outline of the FOIA's
exemptions is contained in subpart C of this part.
(d) Reasonably segregable portions. Although portions of some
records may be denied, the remaining reasonably segregable portions
must be released to the requester when it reasonably can be assumed
that a skillful and knowledgeable person could not reconstruct the
excised information. Unless indicating the extent of the deletion would
harm an interest protected by an exemption, the amount of deleted
information shall be indicated on the released portion of paper records
by use of brackets or darkened areas indicating removal of information.
In no case shall the deleted areas be left ``white'' without the use of
brackets to show the bounds of deleted information. In the case of
electronic deletion, or deletion in audiovisual or microfiche records,
if technically feasible, the amount of redacted information shall be
indicated at the place in the record such deletion was made, unless
including the indication would harm an interest protected by the
exemption under which the deletion is made. This may be done by use of
brackets, shaded areas, or some other identifiable technique that will
clearly show the limits of the deleted information. When a record is
denied in whole, the response advising the requester of that
determination will specifically state that it is not reasonable to
segregate portions of the record for release.
(e) Response to requester. (1) Whenever possible, initial
determinations to release or deny a record normally shall be made and
the decision reported to the requester within 10 working days (20
working days effective October 2, 1997) after receipt of the request by
the official designated to respond. When a DoD Component has a
significant number of pending requests which prevent a response
determination within the 10 working day period (20 working days
effective October 2, 1997), the requester shall be so notified in an
interim response, and advised whether their request qualifies for the
fast track or slow track within the DoD Components' multitrack
processing system. Requesters who do not meet the criteria for fast
track processing shall be given the opportunity to limit the scope of
their request in order to qualify for fast track processing. See also
Sec. 286.4(d) for greater detail on multitrack processing and
compelling need meriting expedited processing.
(2) When a decision is made to release a record, a copy should be
made available promptly to the requester once he has complied with
preliminary procedural requirements.
(3) When a request for a record is denied in whole or in part, the
official designated to respond shall inform the requester in writing of
the name and title or position of the official who made the
determination, and shall explain to the requester the basis for the
determination in sufficient detail to permit the requester to make a
decision concerning appeal. The requester specifically shall be
informed by the exemptions on which the denial is based, inclusive of a
brief statement describing what the exemption(s) cover. When the
initial denial is based in whole or in part on a security
classification, the explanation should include a summary of the
applicable Executive Order criteria for classification, as well as an
explanation, to the extent reasonably feasible, of how those criteria
apply to the particular record in question. The requester shall also be
advised of the opportunity and procedures for appealing an unfavorable
determination to a higher final authority within the DoD Component.
(4) The final response to the requester should contain information
concerning the fee status of the request, consistent with the
provisions of subpart F of this part.
(5) The explanation of the substantive basis for a denial shall
include specific citation of the statutory exemption applied under
provisions of this part; e.g., 5 U.S.C. 552(b)(1). Merely referring to
classification; to a ``For Official Use Only'' making on the requested
record; or to this part or a DoD Component's regulation does not
constitute a proper citation or explanation of the basis for invoking
an exemption.
(6) When the time for response becomes an issue, the official
responsible for replying shall acknowledge to the requester the date of
the receipt of the request.
(7) When denying a request for records, in whole or in part, a DoD
Component shall make a reasonable
[[Page 35365]]
effort to estimate the volume of the records denied and provide this
estimate to the requester, unless providing such an estimate would harm
an interest protected by an exemption of the FOIA. This estimate should
be in number of pages or in some other reasonable form of estimation,
unless the volume is otherwise indicated through deletions on records
disclosed in part.
(8) When denying a request for records in accordance with a statute
qualifying as a FOIA exemption 3 statute, DoD Components shall, in
addition to stating the particular statute relied upon to deny the
information, also state whether a court has upheld the decision to
withhold the information under the particular statute, and a concise
description of the scope of the information being withheld.
(f) Extension of time. (1) In unusual circumstances, when
additional time is needed to respond to the initial request, the DoD
Component shall acknowledge the request in writing within the 10 day
period (20 days effective October 2, 1997), describe the circumstances
requiring the delay, and indicate the anticipated date for a
substantive response that may not exceed 10 additional working days,
except as provided in paragraphs (f)(2) through (f)(6) of this section.
(2) With respect to a request for which a written notice has
extended the time limits by 10 additional working days, and the
Component determines that it cannot make a response determination
within that additional 10 working day period, the requester shall be
notified and provided an opportunity to limit the scope of the request
so that it may be processed within the extended time limit, or an
opportunity to arrange an alternative time frame for processing the
request or a modified request. Refusal by the requester to reasonably
modify the request or arrange for an alternative time frame shall be
considered a factor in determining whether exceptional circumstances
exist with respect to DoD Components' request backlogs. Exceptional
circumstances do not include a delay that results from predictable
component backlogs, unless the DoD Component demonstrates reasonable
progress in reducing its backlog.
(3) Unusual circumstances that may justify delay are:
(i) The need to search for and collect the requested records from
other facilities that are separate from the office determined
responsible for a release or denial decision on the requested
information.
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are requested
in a single request.
(iii) The need for consultation, which shall be conducted with all
practicable speed, with other agencies having a substantial interest in
the determination of the request, or among two or more DoD Components
having a substantial subject-matter interest in the request.
(4) DoD Components may aggregate certain requests by the same
requester, or by a group of requesters acting in concert, if the DoD
Component reasonably believes that such requests actually constitute a
single request, which would otherwise satisfy the unusual circumstances
set forth above, and the requests involve clearly related matters.
Multiple requests involving unrelated matters shall not be aggregated.
If the requests are aggregated under these conditions, the requester or
requesters shall be so notified.
(5) In cases where the statutory time limits cannot be met and no
informal extension of time has been agreed to, the inability to process
any part of the request within the specified time should be explained
to the requester with a request that he agree to await a substantive
response by an anticipated date. It should be made clear that any such
agreement does not prejudice the right of the requester to appeal the
initial decision after it is made. DoD Components are reminded that the
requester still retains the right to treat this delay as a defacto
denial with full administrative remedies.
(6) As an alternative to the taking of formal extension of time as
described in paragraph (f) of this section, the negotiation by the
cognizant FOIA coordinating office of informal extensions in time with
requesters is encouraged where appropriate.
(g) Misdirected requests. Misdirected requests shall be forwarded
promptly to the DoD Component or other Federal Agency with the
responsibility for the records requested. The period allowed for
responding to the request misdirected by the requester shall not begin
until the request is received by the DoD Component that manages the
records requested.
(h) Records of non-U.S. government source. (1) When a request is
received for a record that falls under exemption 4 (see subpart C of
this part), that was obtained from a non-U.S. Government source, or for
a record containing information clearly identified as having been
provided by a non-U.S. Government source, the source of the record or
information [also known as ``the submitter'' for matters pertaining to
proprietary data under 5 U.S.C. 552, Exemption (b)(4), Sec. 286.12 and
E. O. 12600 (3 CFR, 1987 Comp., p. 235), shall be notified promptly of
that request and afforded reasonable time (e.g., 30 calendar days) to
present any objections concerning the release, unless it is clear that
there can be no valid basis for objection. This practice is required
for those FOIA requests for data not deemed clearly exempt from
disclosure under exemption (b)(4) of 5 U.S.C. 552(a). If, for example,
the record or information was provided with actual or presumptive
knowledge of the non-U.S. Government source and established that it
would be made available to the public upon request, there is no
obligation to notify the source. Any objections shall be evaluated. The
final decision to disclose information claimed to be exempt under
exemption (b)(4) shall be made by an official equivalent in rank to the
official who would make the decision to withhold that information under
the FOIA. When a substantial issue has been raised, the DoD Component
may seek additional information from the source of the information and
afford the source and requester reasonable opportunities to present
their arguments on the legal and substantive issues involved prior to
making an agency determination. When the source advises it will seek a
restraining order or take court action to prevent release of the record
or information, the requester shall be notified, and action on the
request normally shall not be taken until after the outcome of that
court action is known. When the requester brings court action to compel
disclosure, the submitter shall be promptly notified of this action.
(2) If the submitted information is a proposal in response to a
solicitation for a competitive proposal, and the proposal is in the
possession and control of DoD, and meets the requirements of 10 U.S.C.
2305(g), the proposal shall not be disclosed, and no submitter
notification and subsequent analysis is required. The proposal shall be
withheld from public disclosure pursuant to 10 U.S.C. 2305(g) and
exemption (b)(3) of 5 U.S.C. 552. This statute does not apply to bids,
unsolicited proposals, or any proposal that is set forth or
incorporated by reference in a contract between a DoD Component and the
offeror that submitted the proposal. In such situations, normal
submitter notice shall be conducted in accordance with paragraph (h)(1)
of this section except for sealed bids that are opened and read
[[Page 35366]]
to the public. The term proposal means information contained in or
originating from any proposal, including a technical, management, or
cost proposal submitted by an offeror in response to solicitation for a
competitive proposal, but does not include an offeror's name or total
price or unit prices when set forth in a record other than the proposal
itself. Submitter notice, and analysis as appropriate, are required for
exemption (b)(4) matters that are not specifically incorporated in 10
U.S.C. 2305(g).
(3) If the record or information was submitted on a strictly
voluntary basis, absent any exercised authority that prescribes
criteria for submission, and after consultation with the submitter, it
is absolutely clear that the record or information would customarily
not be released to the public, the submitter need not be notified.
Examples of exercised authorities prescribing criteria for submission
are statutes, Executive Orders, regulations, invitations for bids,
requests for proposals, and contracts. Records or information submitted
under these authorities are not voluntary in nature. When it is not
clear whether the information was submitted on a voluntary basis,
absent any exercised authority, and whether it would customarily be
released to the public by the submitter, notify the submitter and ask
that it describe its treatment of the information, and render an
objective evaluation. If the decision is made to release the
information over the objection of the submitter, notify the submitter
and afford the necessary time to allow the submitter to seek a
restraining order, or take court action to prevent release of the
record or information.
(4) The coordination provisions of this paragraph (h) also apply to
any non-U.S. Government record in the possession and control of the DoD
from multi-national organizations, such as the North Atlantic Treaty
Organization (NATO), United Nations Commands, the North American
Aerospace Defense Command (NORAD), the Inter-American Defense Board, or
foreign governments. Coordination with foreign governments under the
provisions of this paragraph (h) may be made through Department of
State, or the specific foreign embassy.
(i) File of initial denials. Copies of all initial denials shall be
maintained by each DoD Component in a form suitable for rapid
retrieval, periodic statistical compilation, and management evaluation.
Records denied at the initial stage shall be maintained for a period of
six years to meet the statute of limitations requirement.
(j) Special mail services. Components are authorized to use
registered mail, certified mail, certificates of mailing and return
receipts. However, their use should be limited to instances where it
appears advisable to establish proof of dispatch or receipt of FOIA
correspondence.
(k) Receipt accounts. The Treasurer of the United States has
established two accounts for FOIA receipts, and all money orders or
checks remitting FOIA fees should be made payable to the U.S.
Treasurer. These accounts, which are described in paragraphs (k)(1) and
(k)(2) of this section shall be used for depositing all FOIA receipts,
except receipts for industrially funded and non appropriated funded
activities. Components are reminded that the below account numbers must
be preceded by the appropriate disbursing office two digit prefix.
Industrially funded and non appropriated funded activity FOIA receipts
shall be deposited to the applicable fund.
(1) Receipt Account 3210 Sale of Publications and Reproductions,
Freedom of Information Act. This account shall be used when depositing
funds received from providing existing publications and forms that meet
the Receipt Account Series description found in Federal Account Symbols
and Titles.
(2) Receipt Account 3210 Fees and Other Charges for Services,
Freedom of Information Act. This account is used to deposit search
fees, fees for duplicating and reviewing (in the case of commercial
requesters) records to satisfy requests that could not be filled with
existing publications or forms.
Sec. 286.24 Appeals.
(a) General. If the official designated by the DoD Component to
make initial determinations on requests for records declines to provide
a record because the official considers it exempt under one or more of
the exemptions of the FOIA, that decision may be appealed by the
requester, in writing, to a designated appellant authority. The appeal
should be accompanied by a copy of the letter denying the initial
request. Such appeals should contain the basis for disagreement with
the initial refusal. Appeal procedures also apply to the disapproval of
a fee category claim by a requester, disapproval of a request for
waiver or reduction of fees, disputes regarding fee estimates, review
on an expedited basis a determination not to grant expedited access to
agency records, and for no record determinations when the requester
considers such responses adverse in nature. Appeals of Office of the
Secretary of Defense and Chairman of the Joint Chiefs of Staff
determinations may be sent to the address in Appendix B, paragraph
2.a., of this part. If a request is merely misaddressed, and the
receiving DoD Component simply advises the requester of such and refers
the request to the appropriate DoD Component, this shall not be
considered a no record determination.
(b) Time of receipt. A FOIA appeal has been received by a DoD
Component when it reaches the office of an appellate authority having
jurisdiction. Misdirected appeals should be referred expeditiously to
the proper appellant authority.
(c) Time limits. (1) The requester shall be advised to file an
appeal so that it reaches the appellate authority no later than 60
calendar days after the date of the initial denial letter. At the
conclusion of this period, the case may be considered closed; however,
such closure does not prevent the requester for filing litigation. In
cases where the requester is provided several incremental
determinations for a single request, the time for the appeal shall not
begin until the requester receives the last such notification. Records
that are denied shall be retained for a period of six years to meet the
statute of limitations requirement.
(2) Final determinations on appeals normally shall be made within
20 working days after receipt. When a DoD Component has a significant
number of appeals preventing a response determination with 20 working
days, the appeals shall be processed in a multitrack processing system,
based at a minimum, on the three processing tracks established for
initial requests. See Sec. 286.4(d). All of the provisions of
Sec. 286.4(d) apply also to appeals of initial determinations, to
include establishing additional processing queues as needed.
(d) Delay in responding to an appeal. (1) If additional time is
needed due to the unusual circumstances described in Sec. 286.23 (f),
the final decision may be delayed for the number of working days (not
to exceed 10), that were not used are additional time for responding to
the initial request.
(2) If a determination cannot be made and the requester notified
within 20 working days, the appellate authority shall acknowledge to
the requester, in writing, the date of receipt of the appeal, the
circumstances surrounding the delay, and the anticipated date for
substantive response. Requesters shall be advised that, if the delay
exceeds the statutory extension provision or is for reasons other than
the unusual circumstances identified in Sec. 286.23 (f), they may
consider their administrative remedies exhausted. They may, however,
without prejudicing their right
[[Page 35367]]
of judicial remedy, await a substantive response. The DoD Component
shall continue to process the case expeditiously, whether or not the
requester seeks a court order for release of the records, but a copy of
any response provided subsequent to filing of a complaint shall be
forwarded to the Department of Justice.
(e) Response to the requester. (1) When an appellate authority
makes a final determination to release all or a portion of records
withheld by an IDA, a written response and a copy of the records so
released should be forwarded promptly to the requester after compliance
with any preliminary procedural requirements, such as payment of fees.
(2) Final refusal of an appeal must be made in writing by the
appellate authority or by a designated representative. The response, at
a minimum, shall include the following:
(1) The basis for the refusal shall be explained to the requester
in writing, both with regard to the applicable statutory exemption or
exemptions invoked under provisions of the FOIA and with respect to
other appeal matters as set forth in paragraph (1) of this section.
(ii) When the final refusal is based in whole or in part on a
security classification, the explanation shall include a determination
that the record meets the cited criteria and rationale of the governing
Executive Order, and that this determination is based on a
declassification review, with the explanation of how that review
confirmed the continuing validity of the security classification.
(iii) The final denial shall include the name and title or position
of the official responsible for the denial.
(iv) In the case of appeals for total denial of records, the
response shall advise the requester that the information being denied
does not contain meaningful portions that are reasonably segregable.
(v) When the denial is based upon an exemption 3 statute (see
Sec. 286.12(e)), the response, in addition to citing the statute relied
upon to deny the information, shall state whether a court has upheld
the decision to withhold the information under the statute, and shall
contain a concise description of the scope of the information withheld.
(vi) The response shall advise the requester of the right of
judicial review.
(f) Consultation. (1) Final refusal involving issues not previously
resolved or that the DoD Component knows to be inconsistent with
rulings of other DoD Components ordinarily should not be made before
consultation with the DoD Office of the General Counsel.
(2) Tentative decisions to deny records that raise new or
significant legal issues of potential significance to other Agencies of
the Government shall be provided to the DoD Office of the General
Counsel.
Sec. 286.25 Judicial actions.
(a) General. (1) This section states current legal and procedural
rules for the convenience of the reader. The statements of rules do not
create rights or remedies not otherwise available, nor do they bind the
Department of Defense to particular judicial interpretations or
procedures.
(2) A requester may seek an order from a U.S. District Court to
compel release of a record after administrative remedies have been
exhausted; i.e., when refused a record by the head of a Component or an
appellate designee or when the DoD Component has failed to respond
within the time limits prescribed by the FOIA and in this part.
(b) Jurisdiction. The requester may bring suit in the U.S. District
Court in the district in which the requester resides or is the
requesters place of business, in the district in which the record is
located, or in the District of Columbia.
(c) Burden of proof. The burden of proof is on the DoD Component to
justify its refusal to provide a record. The court shall evaluate the
case de novo (anew) and may elect to examine any requested record in
camera (in private) to determine whether the denial was justified.
(d) Actions by the Court. (1) When a DoD Component has failed to
make a determination within the statutory time limits but can
demonstrate due diligence in exceptional circumstances, to include
negotiating with the requester to modify the scope of their request,
the court may retain jurisdiction and allow the Component additional
time to complete its review of the records.
(2) If the court determines that the requester's complaint is
substantially correct, it may require the United States to pay
reasonable attorney fees and other litigation costs.
(3) When the court orders the release of denied records, it may
also issue a written finding that the circumstances surrounding the
withholding raise questions whether DoD Component personnel acted
arbitrarily and capriciously. In these cases, the special counsel of
the Merit System Protection Board shall conduct an investigation to
determine whether or not disciplinary action is warranted. The DoD
Component is obligated to take the action recommended by the special
counsel.
(4) The court may punish the responsible official for contempt when
a DoD Component fails to comply with the court order to produce records
that it determines have been withheld improperly.
(e) Non-United States Government Source Information. A requester
may bring suit in a U.S. District Court to compel the release of
records obtained from a non-government source or records based on
information obtained from a non-government source. Such source shall be
notified promptly of the court action. When the source advises that it
is seeking court action to prevent release, the DoD Component shall
defer answering or otherwise pleading to the complainant as long as
permitted by the Court or until a decision is rendered in the court
action of the source, whichever is sooner.
(f) FOIA litigation. Personnel responsible for processing FOIA
requests at the DoD Component level shall be aware of litigation under
the FOIA. Such information will provide management insights into the
use of the nine exemptions by Component personnel. Whenever a complaint
under the FOIA is filed in a U.S. District Court, the DoD Component
named in the complaint shall forward a copy of the complaint by any
means to the OASD(PA), Attn: DFOISR, with an information copy to the
DoD Office of the General Counsel, Attn: Office of Legal Counsel.
Subpart F--Fee Schedule
Sec. 286.28 General provisions.
(a) Authorities. The Freedom of Information Act, as amended; the
Paperwork Reduction Act (44 U.S.C. Chapter 35), as amended; the Privacy
Act of 1974, as amended; the Budget and Accounting Act of 1921 and the
Budget and Accounting Procedures Act, as amended (see 31 U.S.C.); and
10 U.S.C. 2328.
(b) Application. (1) The fees described in this subpart apply to
FOIA requests, and conform to the Office of Management and Budget
Uniform Freedom of Information Act Fee Schedule and Guidelines. They
reflect direct costs for search, review (in the case of commercial
requesters); and duplication of documents, collection of which is
permitted by the FOIA. They are neither intended to imply that fees
must be charged in connection with providing information to the public
in the routine course of business, nor are they meant as a substitute
for any other schedule of fees, such as DoD
[[Page 35368]]
Instruction 7230.7,\11\ which does not supersede the collection of fees
under the FOIA. Nothing in this subpart shall supersede fees chargeable
under a statute specifically providing for setting the level of fees
for particular types of records. A ``statue specifically providing for
setting the level of fees for particular types of records'' (5 U.S.C.
552 (a)(4)(A)(vi)) means any statute that enables a Government Agency
such as the Government Printing Office (GPO) or the National Technical
Information Service (NTIS), to set and collect fees. Components should
ensure that when documents that would be responsive to a request are
maintained for distribution by agencies operating statutory-based fee
schedule programs such as the GPO or NTIS, they inform requesters of
the steps necessary to obtain records from those sources.
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\11\ See footnote 1 to Sec. 286.1(a).
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(2) The term ``direct costs'' means those expenditures a Component
actually makes in searching for, reviewing (in the case of commercial
requesters), and duplicating documents to respond to an FOIA request.
Direct costs include, for example, the salary of the employee
performing the work (the basic rate of pay for the employee plus 16
percent of that rate to cover benefits), and the costs of operating
duplicating machinery. These factors have been included in the fee
rates prescribed at Sec. 286.29. Not included in direct costs are
overhead expenses such as costs of space, heating or lighting the
facility in which the records are stored.
(3) The term ``search'' includes all time spent looking, both
manually and electronically, for material that is responsive to a
request. Search also includes a page-by-page or line-by-line
identification (if necessary) of material in the record to determine if
it, or portions thereof are responsive to the request. Components
should ensure that searches are done in the most efficient and least
expensive manner so as to minimize costs for both the Component and the
requester. For example, Components should not engage in line-by-line
searches when duplicating an entire document known to contain
responsive information would prove to be the less expensive and quicker
method of complying with the request. Time spent reviewing documents in
order to determine whether to apply one or more of the statutory
exemptions is not search time, but review time. See paragraph (b)(5) of
this section for the definition of review, and paragraph (c)(5) of this
section and Sec. 286.29(b)(2) for information pertaining to computer
searches.
(4) The term ``duplication'' refers to the process of making a copy
of a document in response to an FOIA request. Such copies can take the
form of paper copy, microfiche, audiovisual, or machine readable
documentation (e.g., magnetic tape or disc), among others. Every effort
will be made to ensure that the copy provided is in a form that is
reasonably useable, the requester shall be notified that the copy
provided is the best available and that the Agency's master copy shall
be made available for review upon appointment. For duplication of
computer tapes and audiovisual, the actual costs, including the
operator's time, shall be charged. In practice, if a Component
estimates that assessable duplication charges are likely to exceed
$25.00, it shall notify the requester of the estimate, unless the
requester has indicated in advance his or her willingness to pay fees
as high as those anticipated. Such a notice shall offer a requester the
opportunity to confer with Component personnel with the object of
reformulating the request to meet his or her needs at a lower cost.
(5) The term ``review'' refers to the process of examining
documents located in response to an FOIA request to determine whether
one or more of the statutory exemptions permit withholding. It also
includes processing the documents for disclosure, such as excising them
for release. Review does not include the time spent resolving general
legal or policy issues regarding the application of exemptions. It
should be noted that charges for commercial requesters may be assessed
only for the initial review. Components may not charge for reviews
required at the administrative appeal level of an exemption already
applied. However, records or portions of records withheld in full under
an exemption that is subsequently determined not to apply may be
reviewed again to determine the applicability of other exemptions not
previously considered. The costs for such a subsequent review would be
properly assessable.
(c) Fee restrictions. (1) No fees may be charged by any DoD
Component if the costs of routine collection and processing of the fee
are likely to equal or exceed the amount of the fee. With the exception
of requesters seeking documents for a commercial use, Components shall
provide the first two hours of search time, and the first one hundred
pages of duplication without charge. For example, for a request (other
than one from a commercial requester) that involved two hours and ten
minutes of search time, and resulted in one hundred and five pages of
documents, a Component would determine the cost of only ten minutes of
search time, and only five pages of reproduction. If this processing
cost was equal to, or less than, the cost to the Component for billing
the requester and processing the fee collected, no charges would
result.
(2) Requesters receiving the first two hours of search and the
first one hundred pages of duplication without charge are entitled to
such only once per request. Consequently, if a Component, after
completing its portion of a request, finds it necessary to refer the
request to a subordinate office, another DoD Component, or another
Federal Agency to action their portion of the request, the referring
Component shall inform the recipient of the referral of the expended
amount of search time and duplication cost to date.
(3) The elements to be considered in determining the ``cost of
collecting a fee'' are the administrative costs to the Component of
receiving and recording a remittance, and processing the fee for
deposit in the Department of Treasury's special account. The cost to
the Department of Treasury to handle such remittance is negligible and
shall not be considered in Components' determinations.
(4) For the purposes of these restrictions, the word ``pages''
refers to paper copies of a standard size, which will normally be
``8\1/2\ x 11'' or ``11 x 14''. Thus, requesters would not be
entitled to 100 microfiche or 100 computer disks, for example. A
microfiche containing the equivalent of 100 pages or 100 pages of
computer printout however, might meet the terms of the restriction.
(5) In the case of computer searches, the first two free hours will
be determined against the salary scale of the individual operating the
computer for the purposes of the search. As an example, when the direct
costs of the computer central processing unit, input-output devices,
and memory capacity equal $24.00 (two hours of equivalent search at the
clerical level), amounts of computer costs in excess of that amount are
chargeable as computer search time. In the event the direct operating
cost of the hardware configuration cannot be determined, computer
search shall be based on the salary scale of the operator executing the
computer search. See Sec. 286.29 for further details regarding fees for
computer searches.
(d) Fee waivers. (1) Documents shall be furnished without charge,
or at a charge reduced below fees assessed to the categories of
requesters in paragraph (e) of this section when the Component
determines that waiver or reduction of the fees is in the public
interest because
[[Page 35369]]
furnishing the information is likely to contribute significantly to
public understanding of the operations or activities of the Department
of Defense and is not primarily in the commercial interest of the
requester.
(2) When assessable costs for a FOIA request total $15.00 or less,
fees shall be waived automatically for all requesters, regardless of
category.
(3) Decisions to waive or reduce fees that exceed the automatic
waiver threshold shall be made on a case-by-case basis, consistent with
the following factors:
(i) Disclosure of information ``is in the public interest because
it is likely to contribute significantly to public understanding of the
operations or activities of the Government.''
(A) The subject of the request. Components should analyze whether
the subject matter of the request involves issues that will
significantly contribute to the public understanding of the operations
or activities of the Department of Defense. Requests for records in the
possession of the Department of Defense which were originated by non-
government organizations and are sought for their intrinsic content,
rather than informative value, will likely not contribute to public
understanding of the operations or activities of the Department of
Defense. An example of such records might be press clippings, magazine
articles, or records forwarding a particular opinion or concern from a
member of the public regarding a DoD activity. Similarly, disclosures
of records of considerable age may or may not bear directly on the
current activities of the Department of Defense; however, the age of a
particular record shall not be the sole criteria for denying relative
significance under this factor. It is possible to envisage an
informative issue concerning the current activities of the Department
of Defense, based upon historical documentation. Requests of this
nature must be closely reviewed consistent with the requester's state
purpose for desiring the records and the potential for public
understanding of the operations and activities of the Department of
Defense.
(B) The informative value of the information to be disclosed. This
factor requires a close analysis of the substantive contents of a
record, or portion of the record, to determine whether disclosure is
meaningful, and shall inform the public on the operations or activities
of the Department of Defense. While the subject of a request may
contain information that concerns operations or activities of the
Department of Defense, it may not always hold great potential for
contributing to a meaningful understanding of these operations or
activities. An example of such would be a previously released record
that has been heavily redacted, the balance of which may contain only
random words, fragmented sentences, or paragraph headings. A
determination as to whether a record in this situation will contribute
to the public understanding of the operations or activities of the
Department of Defense must be approached with caution, and carefully
weighed against the arguments offered by the requester. Another example
is information already known to be in the public domain. Disclosure of
duplicative, or nearly identical information already existing in the
public domain may add no meaningful new information concerning the
operations and activities of the Department of Defense.
(C) The contribution to an understanding of the subject by the
general public likely to result from disclosure. The key element in
determining the applicability of this factor is whether disclosure will
inform, or have the potential to inform the public, rather than simply
the individual requester or small segment of interested persons. The
identity of the requester is essential in this situation in order to
determine whether such requester has the capability and intention to
disseminate the information to the public. Mere assertions of plans to
author a book, researching a particular subject, doing doctoral
dissertation work, or indigence are insufficient without demonstrating
the capacity to further disclose the information in a manner that will
be informative to the general public. Requesters should be asked to
describe their qualifications, the nature of their research, the
purpose of the requested information, and their intended means of
dissemination to the public.
(D) The significance of the contribution to public understanding.
In applying this factor, Components must differentiate the relative
significance or impact of the disclosure against the current level of
public knowledge, or understanding which exists before the disclosure.
In other words, will disclosure on a current subject of wide public
interest be unique in contributing previously unknown facts, thereby
enhancing public knowledge, or will it basically duplicate what is
already known by the general public? A decision regarding significance
requires objective judgment, rather than subjective determination, and
must be applied carefully to determine whether disclosure will likely
lead to a significant public understanding of the issue. Components
shall not make value judgments as to whether the information is
important enough to be made public.
(ii) Disclosure of the information ``is not primarily in the
commercial interest of the requester.''
(A) The existence and magnitude of a commercial interest. If the
request is determined to be of a commercial interest, Components should
address the magnitude of that interest to determine if the requester's
commercial interest is primary, as opposed to any secondary personal or
non-commercial interest. In addition to profit-making organizations,
individual persons or other organizations may have a commercial
interest in obtaining certain records. Where it is difficult to
determine whether the requester is of a commercial nature, Components
may draw inference from the requester's identity and circumstances of
the request. In such situations, the provisions of paragraph (e) of
this section. Components are reminded that in order to apply the
commercial standards of the FOIA, the requester's commercial benefit
must clearly override any personal or non-profit interest.
(B) The primary interest in disclosure. Once a requester's
commercial interest has been determined, Components should then
determine if the disclosure would be primarily in that interest. This
requires a balancing test between the commercial interest of the
request against any public benefit to be derived as a result of that
disclosure. Where the public interest is served above and beyond that
of the requester's commercial interest, a waiver or reduction of fees
would be appropriate. Conversely, even if a significant public interest
exists, and the relative commercial interest of the requester is
determined to be greater than the public interest, then a waiver or
reduction of fees would be inappropriate. As examples, news media
organizations have a commercial interest as business organizations;
however, their inherent role of disseminating news to the general
public can ordinarily be presumed to be of a primary interest.
Therefore, any commercial interest becomes secondary to the primary
interest in serving the public. Similarly, scholars writing books or
engaged in other forms of academic research, may recognize a commercial
benefit, either directly, or indirectly (through the institution they
represent); however, normally such pursuits are primarily undertaken
for educational purposes, and the application of a fee charge
[[Page 35370]]
would be inappropriate. Conversely, data brokers or others who merely
compile government information for marketing can normally be presumed
to have an interest primarily of a commercial nature.
(4) Components are reminded that the factors and examples used in
this subsection are not all inclusive. Each fee decision must be
considered on a case-by-case basis and upon the merits of the
information provided in each request. When the element of doubt as to
whether to charge or waive the fee cannot be clearly resolved,
Components should rule in favor of the requester.
(5) In addition, the following additional circumstances describe
situations where waiver or reduction of fees are most likely to be
warranted:
(i) A record is voluntarily created to prevent an otherwise
burdensome effort to provide voluminous amounts of available records,
including additional information not requested.
(ii) A previous denial of records is reversed in total, or in part,
and the assessable costs are not substantial (e.g. $15.00-$30.00).
(e) Fee assessment. (1) Fees may not be used to discourage
requesters, and to this end, FOIA fees are limited to standard charges
for direct document search, review (in the case of commercial
requesters) and duplication.
(2) In order to be as responsive as possible to FOIA requests while
minimizing unwarranted costs to the taxpayer, Components shall adhere
to the following procedures:
(i) Analyze each request to determine the category of the
requester. If the Component determination regarding the category of the
requester is different than that claimed by the requester, the
Component shall:
(A) Notify the requester to provide additional justification to
warrant the category claimed, and that a search for responsive records
will not be initiated until agreement has been attained relative to the
category of the requester. Absent further category justification from
the requester, and within a reasonable period of time (i.e., 30
calendar days), the Component shall render a final category
determination, and notify the requester of such determination, to
include normal administrative appeal rights of the determination.
(B) Advise the requester that, notwithstanding any appeal, a search
for responsive records will not be initiated until the requester
indicates a willingness to pay assessable costs appropriate for the
category determined by the Component.
(ii) Requesters should submit a fee declaration appropriate for the
following categories:
(A) Commercial. Requesters should indicate a willingness to pay all
search, review and duplication costs.
(B) Educational or noncommercial scientific institution or news
media. Requesters should indicate a willingness to pay duplication
charges in excess of 100 pages if more than 100 pages of records are
desired.
(C) All others. Requesters should indicate a willingness to pay
assessable search and duplication costs if more than two hours of
search effort or 100 pages of records are desired.
(iii) If the conditions are not met as identified in this paragraph
(e), then the request need not be processed and the requester shall be
so informed.
(iv) In the situations described by paragraphs (e)(2)(i) and
(e)(2)(ii) of this section, Components must be prepared to provide an
estimate of assessable fees if desired by the requester. While it is
recognized that search situations will vary among Components, and that
an estimate is often difficult to obtain prior to an actual search,
requesters who desire estimates are entitled to such before committing
to a willingness to pay. Should Components' actual costs exceed the
amount of the estimate or the amount agreed to by the requester, the
amount in excess of the estimate or the requester's agreed amount shall
not be charged without the requester's agreement.
(v) No DoD Component may require advance payment of any fee; i.e.,
payment before work is commenced or continued on a request, unless the
requester has previously failed to pay fees in a timely fashion, or the
agency has determined that the fee will exceed $250.00. As used in this
sense, a timely fashion is 30 calendar days from the date of billing
(the fees have been assessed in writing) by the Component.
(vi) Where a Component estimates or determines that allowable
charges that a requester may be required to pay are likely to exceed
$250.00, the Component shall notify the requester of the likely cost
and obtain satisfactory assurance of full payment where the requester
has a history of prompt payments, or require an advance payment of an
amount up to the full estimated charges in the case of requesters with
no history of payment.
(vii) Where a requester has previously failed to pay a fee charged
in a timely fashion (i.e., within 30 calendar days from the date of the
billing), the Component may require the requester to pay the full
amount owed, plus any applicable interest, or demonstrate that he or
she has paid the fee, and to make an advance payment of the full amount
of the estimated fee before the Component begins to process a new or
pending request from the requester. Interest will be at the rate
prescribed in 31 U.S.C. 3717 and confirmed with respective Finance and
Accounting Offices.
(viii) After all work is completed on a request, and the documents
are ready for release, Components may request payment before forwarding
the documents, particularly for those requesters who have no payment
history, or for those requesters who have failed previously to pay a
fee in a timely fashion (i.e., within 30 calendar days from the date of
the billing). In the case of the latter, the previsions of paragraph
(e)(2)(vii) of this section apply.
(ix) When Components act under paragraphs (e)(2)(i) through
(e)(2)(vii) of this section, the administrative time limits of the FOIA
will begin only after the Component has received a willingness to pay
fees and satisfaction as to category determination, or fee payments (if
appropriate).
(x) Components may charge for time spent searching for records,
even if that search fails to locate records responsive to the request.
Components may also charge search and review (in the case of commercial
requesters) time if records located are determined to be exempt from
disclosure. In practice, if the Component estimates that search charges
are likely to exceed $25.00, it shall notify the requester of the
estimated amount of fees, unless the requester has indicated in advance
his or her willingness to pay fees as high as those anticipated. Such a
notice shall offer the requester the opportunity to confer with
Component personnel with the object of reformulating the request to
meet his or her needs at a lower cost.
(3) Commercial requesters. Fees shall be limited to reasonable
standard charges for document search, review and duplication when
records are requested for commercial use. Requesters must reasonably
describe the records sought. (See Sec. 286.4(h))
(i) The term ``commercial use'' request refers to a request from,
or on behalf of one who seeks information for a use or purpose that
furthers the commercial, trade, or profit interest of the requester or
the person on whose behalf the request is made. In determining whether
a requester properly belongs in this category, Components must
determine the use to which a requester will put the documents
requested. Moreover, where Component has reasonable cause to doubt the
use to which a requester will put the records sought, or where that
[[Page 35371]]
use is not clear from the request itself, Components should seek
additional clarification before assigning the request to a specific
category.
(ii) When Components receive a request for documents for commercial
use, they should assess charges which recover the full direct costs of
searching for, reviewing for release, and duplicating the records
sought. Commercial requesters (unlike other requesters) are not
entitled to two hours of free search time, nor 100 free pages of
reproduction of documents. Moreover, commercial requesters are not
normally entitled to a waiver or reduction of fees based upon an
assertion that disclosure would be in the public interest. However,
because use is the exclusive determining criteria, it is possible to
envision a commercial enterprise making a request that is not for
commercial use. It is also possible that a non-profit organization
could make a request that is for commercial use. Such situations must
be addressed on a case-by-case basis.
(4) Education institution requesters. Fees shall be limited to only
reasonable standard charges for document duplication (excluding charges
for the first 100 pages) when the request is made by an educational
institution whose purpose is scholarly research. Requesters must
reasonably describe the records sought (see Sec. 286.4(h)). The term
``education institution'' refers to a pre-school, a public or private
elementary or secondary school, an institution of graduate higher
education, an institution of undergraduate higher education, an
institution of professional education, and an institution of vocational
education, which operates a program or programs of scholarly research.
Fees shall be waived or reduced in the public interest if the criteria
of paragraph (d) of this section have been met.
(5) Non-commercial scientific institution requesters. Fees shall be
limited to only reasonable standard charges for document duplication
(excluding charges for the first 100 pages) when the request is made by
a non-commercial scientific institution whose purpose is scientific
research. Requesters must reasonably describe the records sought (see
Sec. 286.4(h)). The term ``non-commercial scientific institution''
refers to an institution that is not operated on a ``commercial'' basis
as defined in paragraph (e)(3) of this section and that is operated
solely for the purpose of conducting scientific research, the results
of which are not intended to promote any particular product or
industry. Fees shall be waived or reduced in the public interest if the
criteria of paragraph (d) of this section have been met.
(6) Components shall provide documents to requesters in paragraphs
(e)(4) and (e)(5) of this section for the cost of duplication alone,
excluding charges for the first 100 pages. To be eligible for inclusion
in these categories, requesters must show that the request is being
made under the auspices of a qualifying institution and that the
records are not sought for commercial use, but in furtherance of
scholarly (from an educational institution) or scientific (from a non-
commercial scientific institution) research.
(7) Representatives of the news media. Fees shall be limited to
only reasonable standard charges for document duplication (excluding
charges for the first 100 pages) when the request is made by a
representative of the news media. Requesters must reasonably describe
the records sought (see Sec. 286.4(h)). Fees shall be waived or reduced
if the criteria of paragraph (d) of this section have been met.
(i) The term ``representative of the news media'' refers to any
person actively gathering news for an entity that is organized and
operated to publish or broadcast news to the public. The term ``news''
means information that is about current events or that would be or
current interest to the public. Examples of news media entities include
television or radio stations broadcasting to the public at large, and
publishers of periodicals (but only in those instances when they can
qualify as disseminators of ``news'') who make their products available
for purchase or subscription by the general public. These examples are
not meant to be all-inclusive. Moreover, as traditional methods of news
delivery evolve (e.g., electronic dissemination of newspapers through
telecommunications services), such alternative media would be included
in this category. In the case of ``freelance'' journalists, they may be
regarded as working for a news organization if they can demonstrate a
solid basis for expecting publication though that organization, even
through not actually employed by it. A publication contract would be
the clearest proof, but Components may also look to the past
publication record of a requester in making this determination.
(ii) To be eligible for inclusion in this category, a requester
must meet the criteria in paragraph (e)(7)(i) of this section and his
or her request must not be made for commercial use. A request for
records supporting the news dissemination function of the requester
shall not be considered to be a request that is for a commercial use.
For example, a document request by a newspaper for records relating to
the investigation of a defendant in a current criminal trial of public
interest could be presumed to be a request form an entity eligible for
inclusion in this category, and entitled to records at the cost of
reproduction alone (excluding charges for the first 100 pages).
(iii) ``Representative of the news media'' does not include private
libraries, private repositories of Government records, or middlemen,
such as information vendors or data brokers.
(8) All other requesters. Components shall charge requesters who do
not fit into any of the categories described in paragraphs (e)(3),
(e)(4), (e)(5), or (e)(7) of this section fees which recover the full
direct cost of searching for and duplicating records, except that the
first two hours of search time and the first 100 pages of duplication
shall be furnished without charge. Requesters must reasonably describe
the records sought (see Sec. 286.4(h)). Requests from subjects about
themselves will continue to be treated under the fee provisions of the
Privacy Act of 1974, which permit fees only for duplication. Components
are reminded that this category of requester may also be eligible for a
wavier or reduction of fees if disclosure of the information is in the
public interest as defined under paragraph (d)(1) of this section. (See
also paragraph (e)(3)(ii) of this section)
(f) Aggregating requests. Except for requests that are for a
commercial use, a Component may not charge for the first two hours of
search time or for the first 100 pages of reproduction. However, a
requester may not file multiple requests at the same time, each seeking
portions of a document or documents, solely in order to avoid payment
of fees. When a Component reasonably believes that a requester or, on
rare occasions, a group of requesters acting in concert, is attempting
to break a request down into a series of requests for the purpose of
avoiding the assessment of fees, the Agency may aggregate any such
requests and charge accordingly. One element to be considered in
determining whether a belief would be reasonable is the time period in
which the requests have occurred. For example, it would be reasonable
to presume that multiple requests of this type made within a 30 day
period had been made to avoid fees. For requests made over a longer
period however, such a presumption becomes harder to sustain and
Components should have a solid basis for determining that aggregation
is warranted in such cases. Components
[[Page 35372]]
are cautioned that before aggregating requests from more than one
requester, they must have a concrete basis on which to conclude that
the requesters are acting in concert and are acting specifically to
avoid payment of fees. In no case may Components aggregate multiple
requests on unrelated subjects from one requester.
(g) Effect of the Debt Collection Act of 1982 (5 U.S.C. 5515 note).
The Debt Collect Act of 1982 (5 U.S.C. 5515 note) provides for a
minimum annual rate of interest to be charged on overdue debts owed the
Federal Government Components may levy this interest penalty for any
fees that remain outstanding 30 calendar days from the date of billing
(the first demand notice) to the requester of the amount owed. The
interest rate shall be as prescribed in 31 U.S.C. 3717 U.S.C. 3717.
Components should verify the current interest rate with respective
Finance and Accounting Offices. After one demand letter has been sent,
and 30 calendar days have lapsed with no payment, Components may submit
the debt to respective Finance and Accounting Offices for collection
pursuant to 5 U.S.C. 5515 note.
(h) Computation of fees. The fee schedule in this subpart shall be
used to compute the search, review (in the case of commercial
requesters) and duplication costs associated with processing a given
FOIA request. Cost shall be computed on time actually spent. Neither
time-based no dollar-minimum charges for search, review and duplication
are authorized.
Sec. 286.29 Collection of fees and rates.
(a) Collection of fees. Collection of fees will be made at the time
of providing the documents to the requester or recipient when the
requester specifically states that the costs involved shall be
acceptable or acceptable up to a specified limit that covers the
anticipated costs. Collection of fees may not be made in advance unless
the requester has failed to pay previously assessed fees within 30
calendar days from the date of the billing by the DoD Component, or the
Component has determined that the fees will be in excess of $250 (see
Sec. 286.28 (e)).
(b) Search time--(1) Manual search.
------------------------------------------------------------------------
Hourly
Type Grade rate
($)
------------------------------------------------------------------------
Clerical........................... E9/GS8 and................ 12
below.....................
Professional....................... O1-O1/GS9-GS15............ 25
Executive.......................... O7/GS16/ES1 and above..... 45
------------------------------------------------------------------------
(2) Computer search. Fee assessments for computer search consists
of two parts; individual time (hereafter referred to as human time),
and machine time.
(i) Human time. Human time is all time spent by humans performing
the necessary tasks to prepare the job for a machine to execute the run
command. If execution of a run requires monitoring by a human, that
human time may be also assessed as computer search. The terms
``programmer/operator'' shall not be limited to the traditional
programmers or operators. Rather, the terms shall be interpreted in
their broadest sense to incorporate any human involved in performing
the computer job (e.g. technician, administrative support, operator,
programmer, database administrator, or action officer).
(ii) Machine time. Machine time involves only direct costs of the
Central Processing Unit (CPU), input/output devices, and memory
capacity used in the actual computer configuration. Only this CPU rate
shall be charged. No other machine related costs shall be charged. In
situation where the capability does not exist to calculate CPU time, no
machine costs can be passed on to the requester. When CPU calculations
are not available, only human time costs shall be assessed to
requesters. Should DoD Components lease computers, the services charged
by the lessor shall not be passed to the requester under the FOIA.
(c) Duplication.
------------------------------------------------------------------------
Type Cost per page (cents)
------------------------------------------------------------------------
Pre-Printed material................... 02
Office Copy............................ 15
Microfiche............................. 25
Computer Copies (tapes, discs or Actual cost of duplicating the
printouts). tape, disc or printout
(includes operator's time and
cost of the medium).
------------------------------------------------------------------------
(d) Review time (in the case of commercial requesters).
------------------------------------------------------------------------
Hourly
Type Grade rate
($)
------------------------------------------------------------------------
Clerical........................... E9/GS8 and below.......... 12
Professional....................... O1-O6/GS9-GS15............ 25
Executive.......................... O7/GS16/ES1 and above..... 45
------------------------------------------------------------------------
(e) Audiovisual documentary materials. Search costs are computed as
for any other record. Duplication cost is the actual direct cost of
reproducing the material, including the wage of the person doing the
work. Audiovisual materials provided to a requester need not be in
reproducible format or quality.
(f) Other records. Direct search and duplication cost for any
record not described in this section shall be computed in the manner
described for audiovisual documentary material.
(g) Cost for special services. Complying with requests for special
services is at the discretion of the Components. Neither the FOIA, nor
its fee structure cover these kinds of services. Therefore, Components
may recover the costs of special services requested by the requester
after agreement has been obtained in writing from the requester to pay
for one or more of the following services:
(1) Certifying that records are true copies.
(2) Sending records by special methods such as express mail, etc.
Sec. 286.30 Collection of fees and fee rates for technical data.
(a) Fees for technical data. (1) Technical data, other than
technical data that discloses critical technology with military or
space application, if required to be released under the FOIA, shall be
released after the person requesting such technical data pays all
reasonable costs attributed to search, duplication and review of the
records to be released. Technical data, as used in this section, means
recorded information, regardless of the form or method of the recording
of a scientific or technical nature (including computer software
documentation). This term does not include computer software, or data
incidental to contract administration, such as financial an/or
management information. DoD Components shall retain the amounts
received by such a release, and it shall be merged with and available
from which the costs were incurred in complying with request. All
reasonable costs as used in this sense are the full costs to the
Federal Government of rendering the service, or fair market value of
the service, whichever is higher. Fair market value shall be
[[Page 35373]]
determined in accordance with commercial rates in the local
geographical area. In the absence of a known market value, charges
shall be based on recovery of full costs to the Federal Government. The
full costs shall include all direct and indirect costs to conduct the
search and to duplicate the records responsive to the request. This
cost is to be differentiated from the direct costs allowable under this
section for other types of information released under FOIA.
(2) Waiver. Components shall waive the payment of costs required in
paragraph (a)(1) of this section which are greater than the costs that
would be required for release of this same information under
Sec. 286.29 if:
(i) The request is made by a citizen of the United States or a
United States corporation, and such citizen or corporation certifies
that the technical data requested is required to enable it to submit an
offer, or determine whether it is capable of submitting an offer to
provide the product to which the technical data relates to the United
States or a contractor with the United States. However, Components may
require the citizen or corporation to pay a deposit in an amount equal
to not more than the cost of complying with the request, which will be
refunded upon submission of an offer by the citizen or corporation;
(ii) The release of technical data is requested in order to comply
with the terms of an international agreement; or
(iii) The Component determines in accordance with
Sec. 286.28(d)(a), that such a waiver is in the interest of the United
States.
(b) Fee rates--(1) Search time--(i) Manual search.
------------------------------------------------------------------------
Hourly
Type Grade rate
($)
------------------------------------------------------------------------
Clerical........................... E9/GS8 and below........ 13.25
(Minimum charge)................... .......................... 8.30
------------------------------------------------------------------------
(ii) Professional and executive (To be established at actual hourly
rate prior to search. A minimum charge will be established at \1/2\
hourly rates). Computer search is based on the total cost of the
central processing unit, input-output devices, and memory capacity of
the actual computer configuration. The wage (based upon the scale in
paragraph (b)(1)(i) of this section) for the computer operator and/or
programmer determining how to conduct, and subsequently executing the
search will be recorded as part of the computer search. See
Sec. 286.29(b)(2) for further details regarding computer search.
(2) Duplication.
------------------------------------------------------------------------
Type Cost
------------------------------------------------------------------------
Aerial photograph maps, specifications, permits, charts,
blueprints, and other technical engineering documents......... $2.50
Engineering data (microfilm):
Aperture cards:
Silver duplicate negative, per card........................ .75
When key punched and verified, per card.................... .85
Diazo duplicate negative, per card......................... .65
When key punched and verified, per card.................... .75
35mm roll film, per frame...................................... .50
16mm roll film, per frame...................................... .45
Paper prints (engineering drawings), each...................... 1.50
Paper reprints of microfilm indices, each...................... .10
------------------------------------------------------------------------
(3) Review time.
------------------------------------------------------------------------
Hourly
Type Grade rate
($)
------------------------------------------------------------------------
Clerical........................... E9/GS8 and below........ 13.25
(Minimum charge)................... .......................... 8.30
------------------------------------------------------------------------
(4) Professional and executive (To be established at actual hourly
rate prior to review. A minimum charge will be established at an hourly
rate).
(5) Other technical data records. Charges for any additional
services not specifically provided in paragraph (b)(3) of this section
consistent with Volume 11A of DoD 7000.14-R,\12\ shall be made by
Components at the following rates:
\12\ See footnote 1 to Sec. 286.1(a).
Minimum charge for office copy (up to six images).............. $3.50
Each additional image.......................................... 10
Each typewritten page.......................................... 3.50
Certification and validation with seal, each................... 5.20
Hand-drawn plots and sketches, each hour or fraction thereof... 12.00
Subpart G--Reports
Sec. 286.33 Reports control.
(a) Each DoD Component shall compile FOIA statistics on a fiscal
year basis beginning October 1, 1997, and report same to the
Directorate for Freedom of Information and Security Review, Office of
the Assistant Secretary of Defense (Public Affairs) (DFOISR, OASD(PA))
no later than November 30 following the fiscal year's close. In turn,
DFOISR, OASD(PA) will produce a consolidated DoD report for submission
to the Attorney General.
(b) Existing DoD standards and registered data elements are to be
utilized to the greatest extent possible in accordance with the
provisions of DoD 8320.1-M,\13\ ``Data Administration Procedures''.
---------------------------------------------------------------------------
\13\ See footnote 1 to Sec. 286.1(a).
---------------------------------------------------------------------------
(c) The reporting requirement outlined in this subpart is assigned
Report Control Symbol DD-PA(A)1365.
Sec. 286.34 Annual report content.
The current edition of DD Form 2564 will be used to submit
component input. Instructions for completion follow:
(a) Item 1. Initial request determinations.
(1) Total requests processed. Enter the total number of initial
FOIA requests responded to (completed) during the fiscal year.
Note: Since more than one action frequently is taken on a
completed case, Total Actions, (see paragraph (a)(6) of this
section) the sum of paragraphs (a)(2) through (a)(5) of this section
can exceed Total Requests Processed (See Appendix F to this part for
form layout).
(2) Granted in full. Enter the total number of initial FOIA
requests responded to that were granted in full during the fiscal year.
(This may include requests granted by your office, yet still requiring
action by another office.)
(3) Denied in part. Enter the total number of initial FOIA requests
responded to and denied in part based on one or more of the nine FOIA
exemptions. (Do not report denial of fee waivers.)
(4) Denied in full. Enter the total number of initial FOIA requests
responded to and denied in full based on one or more of the nine FOIA
exemptions. (Do not report denial of fee waivers.)
(5) ``Other reason'' responses. Enter the total number of initial
FOIA requests in which you were unable to provide all or part of the
requested information based on an ``other reason'' response. Paragraph
(b)(2) of this section explains the six possible ``other reasons''.
(6) Total Actions. Enter the total number of FOIA actions taken
during the fiscal year. This number will be the sum of paragraph (a)(2)
through (a)(5) of this section.
Note. Total actions must be equal to or greater than the number
of total requests processed (paragraph (a)(1) of this section).)
(b) Item 2. (1) Exemptions Invoked on Initial REQUEST
Determinations. Enter the number of times an exemption was
[[Page 35374]]
claimed for each request that was denied in full or in part. Since more
than one exemption may be claimed when responding to a single request,
this number will be equal to or greater than the sum of paragraphs
(a)(3) and (a)(4) of this section.
(2) ``Other reasons'' cited on initial determinations. Identify the
``other reason'' response cited when responding to a FOIA request and
enter the number of times each was claimed.
(i) Transferred request. Enter the number of times a request was
transferred to another DoD component or Federal Agency for action.
(ii) Lack of records. Enter the number of times a search of files
failed to identify records responsive to subject request.
(iii) Failure of requester to reasonably describe record. Enter the
number of times a FOIA request could not be acted upon since the
requester failed to reasonably describe the record(s) being sought.
(iv) Other failures by requester to comply with published rules
and/or directives. Enter the number of times a requester failed to
follow published rules concerning time, place, fees, and procedures.
(v) Request withdrawn by requester. Enter the number of times a
requester withdrew a request and/or appeal.
(vi) Not an agency record. Enter the number of times a requester
was provided a response indicating the requested information was not an
agency record.
(vii) Total. Enter the sum of paragraph (b)(2)(i) through
(b)(2)(vi) of this section. This number will be equal to or greater
than the number in paragraph (a)(5) of this section since more than one
reason may be claimed for each ``other reason'' response.
(c) Item 3. Appeal determinations.
(1) Total appeal responses. Enter the total number of FOIA appeals
responded to (completed) during the fiscal year.
(2) Granted in full. Enter the total number of FOIA appeals
responded to and granted in full during the year.
(3) Denied in part. Enter the total number of FOIA appeals
responded to and denied in part based on one or more of the nine FOIA
exemptions.
(4) Denied in full. Enter the total number of FOIA appeals
responded to and denied in full based on one or more of the nine FOIA
exemptions.
(5) ``Other reason'' responses. Enter the total number of FOIA
appeals in which you were unable to provide the requested information
based on an ``other reason'' response. Paragraph (b)(2) of this section
explains the six possible ``other reasons''.
(6) Total actions. Enter the total number of FOIA appeal actions
taken during the fiscal year. This number will be the sum of paragraphs
(c)(2) through (c)(5) of this section and should be equal or greater
than the number of total appeal responses, paragraph (c)(1) of this
section.
(d) Item 4. (1) Exemtions invoked on appeal determinations. Enter
the number of times an exemption was claimed for each appeal that was
denied in full or in part. Since more than one exemption may be claimed
when responding to a single request, this number will be equal to or
greater than the sum of paragraphs (c)(3) and (c)(4) of this section.
(2) ``Other reasons'' cited on appeal determinations. Identify the
``other reason'' response cited when responding to a FOIA appeal and
enter the number of times each was claimed. See paragraph (b)(2) of
this section for description of ``other reasons''. This number can be
equal to or possibly greater than the number in paragraph (c)(5) of
this section since more than one reason may be claimed for each ``other
reason'' response.
(e) Item 5. Exemption 3 statutes invoked on initial and appeal
determinations. Identify the number of times you have used a specific
statute to support each use of exemption 3 identified in paragraphs
(b)(1) and (d)(1) of this section. List the statutes used to support
each use of exemption 3; the number of instances in which the statute
was cited; note whether or not the statute has been upheld in a court
hearing; and provide a concise description of the material withheld in
each individual case by the statute's use. Ensure you cite specific
sections of acts invoked. To qualify as a 5 U.S.C. 552(b)(3) exemption,
the statute must contain clear wording that the information covered
will not be disclosed. The total number of instances reported above
will be equal to or greater than the total number of 5 U.S.C. 552(b)(3)
exemptions listed in paragraphs (b)(1) and (d)(1) of this section.
(f) Item 6. Number and median age of cases pending as of September
30 of the preceding year. (1) Total number of initial requests pending
as of September 30, preceding year. Enter the total number of initial
FOIA requests pending (open) as of the day before the current reporting
period began (September 30 previous to the reported period, fiscal
year).
(2) Median age of requests pending as of September 30 of the
preceding year. Enter the median age of pending FOIA requests as of the
day before the current reporting period began (September 30 previous to
the reported period, fiscal year).
(3) Examples. (i) Given five cases aged 10, 25, 35, 65, and 100
days from date of receipt as of the previous September 30. The total
requests pending is five. The median age (days) of open requests is the
middle, not average value, in this set of numbers (10, 25, 35, 65, and
100), 35 (the middle value in the set).
(ii) Given six pending cases, aged 10, 20, 30, 50, 120, and 200
days from date of receipt, as of the previous September 30, the total
requests pending is six. The median age (days) of open requests 40 days
(the mean [average] of the two middle numbers in the set, in this case
the average of middle values 30 and 50).
(g) Item 7. Number of initial requests received during the fiscal
year. Enter the total number of initial FOIA requests received during
the reporting period (fiscal year being reported).
(h) Item 8. Types of requests processed and median age. Information
is reported for three types of initial requests completed during the
reporting period: Simple; Complex; and Expedited Processing. The
following items of information are reported for these requests:
(1) Total number of initial requests. Enter the total number of
initial requests processed during the reporting period (fiscal year) by
type (Simple, complex and expedited processing) in the appropriate row
on the form.
(2) Median age (days). Enter the median number of days required to
process each type of case (Simple, complex and expedited processing)
during the period in the appropriate row on the form.
(3) Example. Given seven initial requests, multitrack--Simple
completed during the fiscal year, aged 10, 25, 35, 65, 79, 90 and 400
days when completed. The total number of requests completed was seven.
The median age (days) of completed requests is 65, the middle value in
the set.
(i) Item 9. Fees collected from the public. Enter the total amount
of fees collected from the public during the fiscal year. This includes
search, review and reproduction costs only.
(j) Item 10--(1) FOIA program costs.--(i) Personnel costs.
Paragraphs (j)(1)(i) and (j)(1)(ii) of this section are used to capture
man-years and salary costs of personnel primarily involved in planning,
program management and/or administrative handling of FOIA requests.
Determine salaries for military personnel by using the composite
[[Page 35375]]
standard pay rates (DoD 7220.9-M \14\). For civilian personnel use
Office of Personnel Management salary table and add 16% for benefits. A
sample computation is shown:
---------------------------------------------------------------------------
\14\ See footnote 1 to Sec. 286.1(a).
----------------------------------------------------------------------------------------------------------------
Number of Percent of
Grade personnel Salary time Costs
----------------------------------------------------------------------------------------------------------------
O-5......................................................... 1 $90,707 10 $9,071
O-1......................................................... 1 37,545 10 3,755
E-7......................................................... 1 44,375 50 22,188
---------------------------------------------------
Totals.................................................. 3 ........... 70 35,014
----------------------------------------------------------------------------------------------------------------
(A) Estimated man-years. Add the total percentages of time for
personnel involved in administering the FOIA program and divide by 100.
In the example shown in the table in this paragraph (j)(1)(i),
(10+10+50)/100=.7 man-years.
(B) Man-year costs. Total costs associated with salaries of
individuals involved in administering FOIA program. In the example
shown in the table in this paragraph (j)(1)(i), the total cost if
$35,014.
(C) Estimated man-hour costs by category. This section accounts for
all other personnel not reported in paragraphs (j)(1)(i)(A) and
(j)(1)(i)(B) of this section who are involved in processing FOIA
requests. Enter the total hourly cost for each of the five areas
described.
(1) Search time. This includes only those direct costs associated
with time spent looking for material that is responsive to a request,
including line-by-line identification of material within a document to
determine if it is responsive to the request. Searches may be done
manually or by computer using existing programming.
(2) Review and excising. This includes all direct costs incurred
during the process of examining documents located in response to a
request to determine whether any portion of any document located is
permitted to be withheld. It also includes excising documents to
prepare them for release. It does not include time spent resolving
general legal or policy issues regarding the application of exemptions.
(3) Coordinatoin and approval. This includes all costs involved in
coordinating the release/denial of documents requested under the FOIA.
(4) Correspondence/form preparation. This includes all costs
involved in typing responses, filling out forms, etc., to respond to a
FOIA request.
(5) Other activities. This includes all other processing costs not
covered above, such as processing time by the mail room.
(6) Total. Enter the sum of paragraphs (j)(1)(A) through
(j)(1)(i)(E) of this section.
(D) Overhead. This is the cost of supervision, space, and
administrative support. It is computed as 25% of the sum of paragraphs
(j)(1)(i)(B) and (j)(1)(i)(C) of this section.
(E) Total. Enter the sum of paragraphs (j)(1)(i)(B), (j)(1)(i)(C)
and (j)(1)(i)(D) of this section.
(ii) Other case-related costs. Using the fee schedule, enter the
total amounts incurred in each of the following paragraphs.
(A) Computer search time. This includes cost of central processing
unit, input/output devices, memory, etc. of the computer system used,
as well as the wage of the machine's operator/programmer. Since desk
top/personal computers have no central processing units, when these
systems are involved, computer search shall consist only of personnel
time to accomplish the job.
(B) Office copy reproduction. This is the cost of reproducing
normal documents with office copying equipment.
(C) Microfiche reproduction. This is the cost of reproducing
records and providing microfiche.
(D) Printed records. This is the cost of providing reproduced
copies of forms, publications, or reports.
(E) Computer copy. This is the actual cost of duplicating magnetic
tapes, floppy diskettes, computer printouts, etc.
(F) Audiovisual materials. This is the actual cost of duplicating
audio or video tapes or like materials, to include the wage of the
person doing the work.
(G) Other. Report all other costs which are easily identifiable,
such as per diem, operation of courier vehicles, training courses,
printing (indexes and forms), long distance telephone calls, special
mail services, use of indicia, etc.
(H) Subtotal. Enter the sum of paragraphs (j)(1)(ii)(A) through
(j)(1)(ii)(G) of this section.
(I) Overhead. This is the cost of supervision, space, and
administrative support. It is computed as 25% of paragraph
(j)(1)(ii)(H) of this section.
(J) Total. Enter the sum of paragraphs (j)(1)(ii)(H) and
(j)(1)(ii)(I) of this section.
(iii) Cost of routine requests processed. This item is optional.
Some reporting activities may find it economical to develop an average
cost factor for processing repetitive routine requests rather than
tracking costs on each request as it is processed. Care should be
exercised so that costs are comprehensive to include a 25% overhead,
yet are not duplicated elsewhere in the report. Multiply the number of
routine requests processed time the cost factor to compute this amount.
(iv) Total costs. Enter the sum of paragraphs (j)(1)(i) through
(j)(1)(iii) of this section.
(2) Number of full time staff. Enter the number of people in your
agency that process FOIA actions full time.
(k) Item 11. Date report prepared. Enter the date the report was
completed and signed by an approving official.
(l) Item 12. Name, address & phone number of agency. Enter data for
the agency or activity that prepared the report.
(m) Item 13. Signature, typed name, and title of approving
official. Enter the name and title of the individual approving the
report. Approval of the report is indicated by the official's
signature.
Subpart H--Education and Training
Sec. 286.37 Respnsibility and purpose.
(a) Responsibility. The Head of each DoD Component is responsible
for the establishment of educational and training programs on the
provisions and requirements of this part. The educational programs
should be targeted toward all members of the DoD Component, developing
a general understanding and appreciation of the DoD FOIA Program;
whereas, the training programs should be focused toward those personnel
who are
[[Page 35376]]
involved in the day-to-day processing of FOIA requests, and should
provide a thorough understanding of the procedures outlined in this
part.
(b) Purpose. The purpose of the educational and training programs
is to promote a positive attitude among DoD personnel and raise the
level of understanding and appreciation of the DOD FOIA Program,
thereby improving the interaction with members of the public and
improving the public trust in the DoD.
(c) Scope and principles. Each Component shall design its FOIA
educational and training programs to fit the particular requirements
depending upon their degree of involvement in the implementation of
this part. The program should be designed to accomplish the following
objectives:
(1) Familiarize personnel with the requirements of the FOIA and its
implementation by this part.
(2) Instruct personnel, who act in FOIA matters, concerning the
provisions of this part, advising them of the legal hazards involved
and the strict prohibition against arbitrary and capricious withholding
of information.
(3) Provide for the procedural and legal guidance and instruction,
as may be required, in the discharge of the responsibilities of initial
denial and appellate authorities.
(4) Advise personnel of the penalties for noncompliance with the
FOIA.
(d) Implementation. To ensure uniformity of interpretation, all
major educational and training programs concerning the implementation
of this part should be coordinated with the Director, Freedom of
Information and Security Review, OASD(PA).
(e) Uniformity of legal interpretation. In accordance with DoD
Directive 5400.7, the DoD Office of the General Counsel shall ensure
uniformity in the legal position and interpretation of the DoD FOIA
Program.
Appendix A to Part 286--Combatant Commands--Processing Procedures for
FOIA Appeals
1. General
a. In accordance with DoD Directive 5400 \1\ and this part, the
Combatant Commands are placed under the jurisdiction of the Office
of the Secretary of Defense, instead of the administering Military
Department, only for the purpose of administering the Freedom of
Information Act (FOIA) Program. This policy represents an exception
to the policies in DoD Directive 5100.3.\2\
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\1\ Copies may be obtained, at cost, from the National Technical
Information Service 5285 Port Royal Road, Springfield, VA 22161.
\2\ See footnote 1 to section 1.a. of this appendix.
---------------------------------------------------------------------------
b. The policy change in paragraph 1.a. of this section
authorizes and requires the Combatant Commands to process FOIA
requests in accordance with DoD Directive 5100.7 and DoD Instruction
54001.10 \3\ and to forward directly to the OASD(PA) all
correspondence associated with the appeal of an initial denial for
information under the provisions of the FOIA.
---------------------------------------------------------------------------
\3\ See footnote 1 to section 1.a. of this appendix.
---------------------------------------------------------------------------
2. Responsibilities of Commands
Combatant Commanders in Chief shall:
a. Designate the officials authorized to deny initial FOIA
requests for records.
b. Designate an office as the point-of-contact for FOIA matters.
c. Refer FOIA cases to the OASD(PA) for review and evaluation
when the issues raised are of unusual significance, precedent
setting, or otherwise require special attention or guidance.
d. Consult with other OSD and DoD Components that may have a
significant interest in the requested record prior to a final
determination. Coordination with Agencies outside of the Department
of Defense, if required, is authorized.
e. Coordinate proposed denials of records with the appropriate
Combatant Command's Office of the Staff Judge Advocate.
f. Answer any request for a record within 10 working days (20
working days effective October 2, 1997) of receipt. The requester
shall be notified that his request has been granted or denied. In
unusual circumstances, such notification may state that additional
time, not to exceed 10 working days, is required to make
determination.
g. Provide to the OASD(PA) when the request for a record is
denied in whole or in part, a copy of the response to the requester
or his representative, and any internal memoranda that provide
background information or rationale for the denial.
h. State in the response that the decision to deny the release
of the requested information, in whole or in part, may be appealed
to the Assistant Secretary of Defense for Public Affairs,
Directorate for Freedom of Information and Security Review, Room
2C757, the Pentagon, Washington, DC 20301-1400.
i. Upon request, submit to OASD(PA) a copy of the records that
were denied. ASD(PA) shall make such requests when adjudicating
appeals.
3. Fees for FOIA Requests
The fees charged for requested records shall be in accordance
with subpart F of this part.
4. Communications
Excellent communication capabilities currently exists between
the OASD(PA) and the Public Affairs Offices of the Combatant
Commands. This communication capability shall be used for FOIA cases
that are time sensitive.
5. Information Requirements
a. The Combatant Commands shall submit to the OASD(PA) an annual
report. The instructions for the report are outlined in subpart G of
this part.
b. The annual reporting requirement contained in this regulation
shall be submitted in duplicate to the OASD(PA) not later than each
November 30. This reporting requirement has been assigned Report
Control Symbol DD-PA(A) 1365 in accordance with DoD 8910.1-M. \4\
---------------------------------------------------------------------------
\4\ See footnote 1 to section 1.a. of this appendix.
---------------------------------------------------------------------------
Appendix B to Part 286--Addressing FOIA Requests
1. General
a. The Department of Defense includes the Office of the
Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the
Military Departments, the Combatant Commands, the Inspector General,
the Defense Agencies, and the DoD Field Activities.
b. The Department of Defense does not have a central repository
for DoD records. FOIA requests, therefore, should be addressed to
the DoD Component that has custody of the record desired. In
answering inquiries regarding FOIA requests, DoD personnel shall
assist requesters in determining the correct DoD Component to
address their requests. If there is uncertainty as to the ownership
of the record desired, the requester shall be referred to the DoD
Component that is most likely to have the record.
2. Listing of DoD Component Addresses for FOIA Requests
a. Office of the Secretary of Defense and the Chairman of the
Joint Chiefs of Staff. Send all requests for records from the below
listed offices to: Office of the Assistant Secretary of Defense
(Public Affairs), ATTN: Directorate for Freedom of Information and
Security Review, Room 2C757, 1400 Defense Pentagon, Washington, DC
20301-1400.
(1) Executive Secretariat
(2) Under Secretary of Defense (Policy)
(i) Assistant Secretary of Defense (International Security Affairs)
(ii) Assistant Secretary of Defense (International Security Policy)
(iii) Assistant Secretary of Defense (Special Operations & Low
Intensity Conflict)
(iv) Assistant Secretary of Defense (Strategy & Requirements)
(v) Deputy to the Under Secretary of Defense (Policy Support)
(vi) Director of Net Assessment
(vii) Defense Security Assistant Agency
(viii) Defense technology Security Administration
(3) Under Secretary of Defense (Acquisition & Technology)
(i) Deputy Under Secretary of Defense (Logistics)
(ii) Deputy Under Secretary of Defense (Advanced Technology)
(iii) Deputy Under Secretary of Defense (Acquisition Reform)
(iv) Deputy Under Secretary of Defense (Environmental Security)
(v) Deputy Under Secretary of Defense (Space)
(vi) Deputy Under Secretary of Defense (International & Commercial
Programs)
(vii) Deputy Under Secretary of Defense (Industrial Affairs &
Installations)
[[Page 35377]]
(viii) Assistant to the Secretary of Defense (Nuclear, Chemical &
Biological Defense Programs)
(ix) Director, Defense Research & Engineering
(x) Director, Small & Disadvantaged Business Utilization
(xi) Director, Defense Procurement
(xii) Director, Test Systems Engineering & Evaluation
(xiii) Director, Strategic & Tactical Systems
(xiv) Director, Administration and Management
(xv) Defense Evaluation Support Activity
(xvi) DoD Radiation Experiments Command Center
(xvii) On-Site Inspection Agency
(4) Under Secretary of Defense (Comptroller)
(5) Director Program Analysis and Evaluation
(6) Under Secretary of Defense (Personnel & Readiness)
(i) Assistant Secretary of Defense (Health Affairs)
(ii) Assistant Secretary of Defense (Legislative Affairs)
(iii) Assistant Secretary of Defense (Public Affairs)
(iv) Assistant Secretary of Defense (Command, Control,
Communications & Intelligence)
(v) Assistant Secretary of Defense (Reserve Affairs)
(7) General Counsel, Department of Defense
(8) Director, Operational Test and Evaluation
(9) Assistant to the Secretary of Defense (intelligence Oversight)
(10) Defense Advanced Research Projects Agency
(11) Ballistic Missile Defense Organization
(12) Defense Systems Management College
(13) National Defense University
(14) Armed Forces Staff College
(15) Department of Defense Dependents Schools
(16) Uniformed Services University of the Health Sciences
(17) Armed Forces Radiology Research Institute
(18) Washington Headquarters Service
b. Department of the Army. Army records may be requested from
those Army officials who are listed in 32 CFR part 518. Send
requests to the Freedom of Information and Privacy Acts Office,
SAIS-IA-R/FP, Suite 201, 1725 Jefferson Davis Hwy, Arlington, VA
22202-4102, for records of the Headquarters, U.S. Army, or if there
is uncertainty as to which Army activity may have the records.
c. Department of the Navy. Navy and Marine Corps records may be
requested from any Navy or Marine Corps activity by addressing a
letter to the Commanding Officer and clearly indicating that it is
an FOIA request. Send requests to Chief of Naval Operations, NO9B30,
2000 Navy, Pentagon, Washington, DC 20350-2000, for records of the
Headquarters, Department of the Navy, and to Commandant of the
Marine Corps, (ARAD), Headquarters U.S. Marine Corps, 2 Navy Annex,
Washington, DC 20380-1775, for records of the U.S. Marine Corps, or
if there is uncertainty as to which Navy or Marine activities may
have the records.
d. Department of the Air Force. Air Force records may be
requested from the Commander of any Air Force installation, major
command, or field operating agency (ATTN: FOIA Office). For Air
Force records of Headquarters, United States Air Force, or if there
is uncertainty as to which Air Force activity may have the records,
send requests to Department of the Air Force, OL-P, 11CS/SCSR(FOIA),
Room 4A1088C, 1000 Air Force, Pentagon, Washington, DC 20330-1000.
e. Defense Contract Audit Agency (DCAA). DCAA records may be
requested from any of its regional offices or from its Headquarters.
Requesters should send FOIA requests to the Defense Contract Audit
Agency, ATTN: CMR, 8725 John J. Kingman Road, Suite 2135, Fort
Belvoir, VA 22060-6219, for records of its headquarters or if there
is uncertainty as to which DCAA region may have the records sought.
f. Defense Information Systems Agency (DISA). DISA records may
be requested from any DISA field activity or from its Headquarters.
Requesters should send FOIA requests to Defense Information Systems
Agency, Regulatory/General Counsel, 701 South Courthouse Road,
Arlington, VA 22204-2199.
g. Defense Intelligence Agency (DIA). FOIA requests for DIA
records may be addressed to Defense Intelligence Agency, ATTN: SVI-
1, Washington, DC 20340-5100.
h. Defense Investigative Service (DIS). All FOIA requests for
DIS records should be sent to the Defense Investigative Service,
Office of FOIA and Privacy V0020, 1340 Braddock Place, Alexandria,
VA 22314-1651.
i. Defense Logistics Agency (DLA). DLA records may be requested
from its headquarters or from any of its field activities.
Requesters should send FOIA requests to Defense Logistics Agency,
ATTN: DLA/CAAV, John J. Kingman Road, Suite 2533, Ft. Belvoir, VA
22060-6221.
j. National Imagery and Mapping Agency (NIMA). FOIA requests for
NIMA records may be sent to the National Imagery and Mapping Agency,
General Counsel's Office, GCM, Mail Stop D-10, 4600 Sangamore Road,
Bethesda, MD 20816-5003.
k. Defense Special Weapons Agency (DSWA). FOIA requests for DSWA
records may be sent to the Defense Special Weapons Agency, Public
Affairs Office, Room 113, 6801 Telegraph Road, Alexandria, VA 22310-
3398.
l. National Security Agency (NSA). FOIA requests for NSA records
may be sent to the National Security Agency/Central Security
Service, FOIA/PA Services, N5P5, 9800 Savage Road, Suite 6248, Fort
George G. Meade, MD 20755-6248.
m. Inspector General of the Department of Defense (IG, DoD).
FOIA requests for IG, DoD records may be sent to the Inspector
General of the Department of Defense, Chief FOIA/PA Office, 400 Army
Navy Drive, Room 405, Arlington, VA 22202-2884.
n. Defense Finance and Accounting Service (DFAS). DFAS records
may be requested from any of its regional offices or from its
Headquarters. Requesters should send FOIA requests to Defense Finace
and Accounting Service, Directorate for External Services, Crystal
Mall 3, Room 416, Arlington, VA 22240-5291, for records of its
Headquarters, or if there is uncertainty as to which DFAS region may
have the records sought.
o. National Reconnaissance Office (NRO). FOIA requests for NRO
records may be sent to the National Reconnaissance Office,
Information Access and Release Center, Attn: FOIA Officer, 14675 Lee
Road, Chantilly, VA 20151-1715.
3. Other Addresses
Although the following organizaitons are OSD and Chairman of the
Joint Chiefs of Staff Components for the purposes of the FOIA,
requests may be sent directly to the addresses indicated:
a. Office of Civilian Health and Medical Program of the
Uniformed Services (OCHAMPUS). Director, OCHAMPUS, ATTN: Freedom of
Information Officer, Aurora, CO 80045-6900.
b. Chairman Armed Services Board of Contract Appeals (ASBCA).
Chairman, Armed Services Board of Contract Appeals, Skyline Six Rm
703, 5109 Leesburg Pike, Falls Church, VA 22041-3208.
c. U.S. Central Command. Commander-in-Chief, Central Command,
CCJ1/AG, MacDill Air Force Base, FL 33608-7001.
d. U.S. European Command. Commander-in-Chief, Headquarters, U.S.
European Command/ECJ1-AA(FOIA) Unit 30400 Box 1000, APO AE 09128-
4209.
e. U.S. Southern Command. Commander-in-Chief, U.S. Southern
Command, Unit 1110, SCJ1-A, APO AA 34003-0007.
f. U.S. Pacific Command. Commander-in-Chief, U.S. Pacific
Command, USPACOM FOIA Coordinator (J042), Administrative Support
Division, Joint Secretariat, Box 28, Camp H.M. Smith, HI 96861-5025.
g. U.S. Special Operations Command. Commander-in-Chief, U.S.
Special Operations Command, Chief, Command Information Management
Branch, ATTN: SOJ6-SI, 7701 Tampa Point Blvd., MacDill Air Force
Base, FL 33621-5323.
h. U.S. Atlantic Command. Commander-in-Chief, U.S. Atlantic
Command, Code J02P, Norfolk, VA 23511-5100.
i. U.S. Space Command. Commander-in-Chief, U.S. Space Command,
Command Records Manager/FOIA/PA Officer, 150 Vandenberg Street,
Suite 1105, Peterson Air Force Base, CO 80914-5400.
j. U.S. Transportation Command. Commander-in-Chief, U.S.
Transportation Command, ATTN: TCIM-F, 508 Scott Drive, Scott Air
Force Base, IL 62225-5357.
k. U.S. Strategic Command. Commander-in-Chief, U.S. Strategic
Command, Attn: J0734, 901 SAC Blvd., Suite 1E5, Offutt Air Force
Base, NE 68113-6073.
4. National Guard Bureau
FOIA requests for National Guard Bureau records may be sent to
the Chief, National Guard Bureau, ATTN: NGB-ADM, Room 2C363, 2500
Army Pentagon, Washington, DC 20310-2500.
5. Miscellaneous
If there is uncertainty as to which DoD Component may have the
DoD record sought, the requester may address a Freedom of
Information request to the Office of the Assistant Secretary of
Defense (Public Affairs), Directorate for Freedom of
[[Page 35378]]
Information and Security Review, Room 2C757, 1400 Defense Pentagon,
Washington, DC 20301-1400.
Appendix C to Part 286--Other Reason Categories
1. Transportation Requests
This category applies when responsibility for making a
determination or a decision on category 2, 3, or 4 of this appendix
is shifted from one Component to another, or to another Federal
Agency.
2. Lack of Records
This category covers those situations wherein the requester is
advised the DoD Component has no record or has no statutory
obligation to create a record.
3. Failure of Requester To Reasonably Describe Record
This category is specifically based on section 552(a)(3)(a) of
the FOIA.
4. Other Failures by Requesters To Comply With Published Rules or
Directives
This category is based on Section 552(a)(3)(b) of the FOIA and
includes instances of failure to follow published rules concerning
time, place, fees, and procedures.
5. Request Withdrawn by Requester
This category covers those situations wherein the requester asks
an agency to disregard the request (or appeal) or pursues the
request outside FOIA channels.
6. Not an Agency Record
This category covers situations where the information requested
is not an agency record within the meaning of the FOIA and this
part.
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Appendix G to Part 286--DoD Freedom of Information Act Program
Components
a. Office of the Secretary of Defense/Chairman of the Joint Chiefs
of Staff/Combatant Commands, Defense Agencies, and the DoD Field
Activities
b. Department of the Army
c. Department of the Navy
d. Department of the Air Force
e. Defense Information Systems Agency
f. Defense Contract Audit Agency
g. Defense Intelligence Agency
h. Defense Investigative Science
i. Defense Logistics Agency
j. National Imagery and Mapping Agency
k. Defense Special Weapons Agency
l. National Security Agency
m. Office of the Inspector General, Department of Defense
n. Defense Finance and Accounting Service
o. National Reconnaissance Office
Dated: June 20, 1997.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 97-16742 Filed 6-30-97; 8:45 am]
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